[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
THE CLEAN WATER ACT
AFTER 37 YEARS: RECOMMITTING
TO THE PROTECTION
OF THE NATION'S WATERS
=======================================================================
(111-70)
HEARING
BEFORE THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
October 15, 2009
__________
Printed for the use of the
Committee on Transportation and Infrastructure
U.S. GOVERNMENT PRINTING OFFICE
52-881 WASHINGTON : 2009
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia, JOHN L. MICA, Florida
Vice Chair DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of JOHN J. DUNCAN, Jr., Tennessee
Columbia VERNON J. EHLERS, Michigan
JERROLD NADLER, New York FRANK A. LoBIONDO, New Jersey
CORRINE BROWN, Florida JERRY MORAN, Kansas
BOB FILNER, California GARY G. MILLER, California
EDDIE BERNICE JOHNSON, Texas HENRY E. BROWN, Jr., South
GENE TAYLOR, Mississippi Carolina
ELIJAH E. CUMMINGS, Maryland TIMOTHY V. JOHNSON, Illinois
LEONARD L. BOSWELL, Iowa TODD RUSSELL PLATTS, Pennsylvania
TIM HOLDEN, Pennsylvania SAM GRAVES, Missouri
BRIAN BAIRD, Washington BILL SHUSTER, Pennsylvania
RICK LARSEN, Washington JOHN BOOZMAN, Arkansas
MICHAEL E. CAPUANO, Massachusetts SHELLEY MOORE CAPITO, West
TIMOTHY H. BISHOP, New York Virginia
MICHAEL H. MICHAUD, Maine JIM GERLACH, Pennsylvania
RUSS CARNAHAN, Missouri MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania JEAN SCHMIDT, Ohio
TIMOTHY J. WALZ, Minnesota CANDICE S. MILLER, Michigan
HEATH SHULER, North Carolina MARY FALLIN, Oklahoma
MICHAEL A. ARCURI, New York VERN BUCHANAN, Florida
HARRY E. MITCHELL, Arizona ROBERT E. LATTA, Ohio
CHRISTOPHER P. CARNEY, Pennsylvania BRETT GUTHRIE, Kentucky
JOHN J. HALL, New York ANH ``JOSEPH'' CAO, Louisiana
STEVE KAGEN, Wisconsin AARON SCHOCK, Illinois
STEVE COHEN, Tennessee PETE OLSON, Texas
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland
SOLOMON P. ORTIZ, Texas
PHIL HARE, Illinois
JOHN A. BOCCIERI, Ohio
MARK H. SCHAUER, Michigan
BETSY MARKEY, Colorado
PARKER GRIFFITH, Alabama
MICHAEL E. McMAHON, New York
THOMAS S. P. PERRIELLO, Virginia
DINA TITUS, Nevada
HARRY TEAGUE, New Mexico
VACANCY
(ii)
CONTENTS
Page
Summary of Subject Matter........................................ v
TESTIMONY
Brown, R. Steven, Executive Director, Environmental Council of
the States..................................................... 53
Butterfield, Ph.D., R.N., Dr. Patricia, Dean, Professor,
Washington State University, testifying on behalf of the
American Nurses Association.................................... 45
Jackson, Honorable Lisa P., Administrator, United States
Environmental Protection Agency................................ 23
Kavanaugh, Dennis, Representative, Sandy Hook Waterman's Alliance 45
Mittal, Anu K., Director, National Resources and Environment
Team, Government Accountability Office......................... 53
Najjum, Wade T., Assistant Inspector General, Office of the
Inspector General, United States Environmental Protection
Agency......................................................... 53
Porta, Tom, Deputy Administrator, Nevada Division of
Environmental Protection, testifying on behalf of Association
of State and Interstate Water Pollution Control Administrators. 53
Rumpler, John, Senior Attorney, Environment America.............. 53
Schaeffer, Eric, Executive Director, Environmental Integrity
Project........................................................ 53
Shimshack, Dr. Jay P., Assistant Professor of Economics, Tulane
University, and Visiting Scholar, Erb Institute, University of
Michigan....................................................... 53
Treml, Judy, Luxemburg, Wisconsin................................ 45
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Bishop, Hon. Tim, of New York.................................... 73
Carnahan, Hon. Russ, of Missouri................................. 74
Graves, Hon. Sam, of Missouri.................................... 75
Johnson, Hon. Eddie Bernice, of Texas............................ 77
Latta, Hon. Robert E., of Ohio................................... 82
McMahon, Hon. Michael E., of New York............................ 85
Mitchell, Hon. Harry E., of Arizona.............................. 87
Richardson, Hon. Laura, of California............................ 89
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Brown, R. Steven................................................. 93
Butterfield, Ph.D., R.N., Dr. Patricia........................... 99
Jackson, Honorable Lisa P........................................ 106
Kavanaugh, Dennis................................................ 135
Mittal, Anu K.................................................... 138
Najjum, Wade T................................................... 156
Porta, Tom....................................................... 176
Rumpler, John.................................................... 187
Schaeffer, Eric.................................................. 190
Shimshack, Dr. Jay P............................................. 198
Treml, Judy...................................................... 207
SUBMISSION FOR THE RECORD
Boozman, Hon. John, a Representative in Congress from the State
of Arkansas, written testimony from the American Road and
Transportation Builders Association, Nick Goldstein, Assistant
General Counsel and Director of Regulatory Affairs............. 7
Jackson, Honorable Lisa P., Administrator, United States
Environmental Protection Agency, responses to questions from
Rep. McMahon, a Representative in Congress from the State of
New York....................................................... 113
Moran, Hon. Jerry, a Representative in Congress from the State of
Kansas, written testimony, Kansas Farm Bureau, Steve Baccus,
President...................................................... 29
ADDITIONS TO THE RECORD
Davis, Hon. Artur, a Representative in Congress from the State of
Alabama, letter to the Environmental Protection Agency......... 216
National Association of Realtors, Charles McMillan, CIPS, GRI,
2009 President, written testimony.............................. 218
Stewards of the Sequoia, Chris Hogan, Executive Director, written
testimony...................................................... 221
[GRAPHIC] [TIFF OMITTED] T2881.001
[GRAPHIC] [TIFF OMITTED] T2881.002
[GRAPHIC] [TIFF OMITTED] T2881.003
[GRAPHIC] [TIFF OMITTED] T2881.004
[GRAPHIC] [TIFF OMITTED] T2881.005
[GRAPHIC] [TIFF OMITTED] T2881.006
[GRAPHIC] [TIFF OMITTED] T2881.007
[GRAPHIC] [TIFF OMITTED] T2881.008
HEARING ON THE CLEAN WATER ACT AFTER 37 YEARS: RECOMMITTING TO THE
PROTECTION OF THE NATION'S WATERS
----------
Thursday, October 15, 2009
House of Representatives
Committee on Transportation and Infrastructure
Washington, DC.
The Committee met, pursuant to call, at 10:00 a.m., in Room
2167, Rayburn House Office Building, the Honorable James
Oberstar [Chairman of the Full Committee] presiding.
Mr. Oberstar. The Committee on Transportation and
Infrastructure will come to order on this dreary, rainy day of
a long commute into Washington.
This hearing marks the 37th anniversary of passage of the
Clean Water Act. Two years ago we did the 35th anniversary. But
I set this hearing as an opportunity to reflect on the progress
made in pollution cleanup; an opportunity to evaluate somewhat
the successes of the Act but, more importantly, the
shortcomings.
This hearing also comes just two days short of the
anniversary of President Nixon's veto of the Clean Water Act,
particularly nostalgic to me since I spent 10 months of 1972, a
good share of it in this room, as administrator of the
Committee on Public Works, as it was known then, under the
leadership of the gentleman whose portrait is in the corner,
John Blatnik, who is my predecessor and Chairman of the
Committee at the time. We spent 10 months negotiating with the
Senate and the White House on the provisions of the Clean Water
Act, which we expected would meet with hostility at the White
House, and we were not disappointed.
But I think it is remindful to look at again, to revisit
President Nixon's veto message. October 17, 1972, he says, ``I
am concerned that we attack pollution in a way that does not
ignore other real threats to the quality of life.'' What? What
is more fundamental to life than water? ``Legislation which
would continue our efforts to raise water quality, but which
would do so through extreme and needless overspending does not
serve the public interest. There is a much better way to get
this job done,'' said Mr. Nixon, ``a bill whose laudable intent
is outweighed by its unconscionable $24 billion price tag.''
Twenty-four billion? That is kind of a footnote in today's
budget.
``The bill that has now come to my desk would provide a
staggering budget wrecking $24 billion.'' Of course, he didn't
say it this way and I apologize for that, but that is the way I
read it. ``Another provision would raise the Federal share of
the cost of future facilities from 55 percent to 75 percent,
actions which would not in any real sense make our waters any
cleaner. I have nailed my colors to the mast on this issue. The
political winds can blow where they may; I am prepared for the
possibility that my action on this bill will be overridden'';
and it was, 10 to 1. Ten to one, overwhelming bipartisan
consensus.
Two years ago, in our review of the Clean Water Act, I
cheered the steps that had been made, or cited--probably a
better way to express it--the steps made in improving the
Nation's water quality. But that was not really a celebration.
Two-thirds of the Nation's waters meet water quality goals as
established by the Act, but a third of the Nation's waters
remain impaired; and the assessment for today's hearing for me
is just plain alarming. Some successes have been clear, but
most of the big success came at a time when the Nation's waters
were bubbling over with phenols and untreated sewage, and
impairment was readily apparent to the naked eye.
The challenges today are very different from those of the
past. No longer is there an imminent fear that the Cuyahoga
River will again catch on fire. No longer do we see the tidal
basin just down the road from us bubbling over and foaming with
raw sewage and toxic wastes, the best-dressed cesspool in
America, as my predecessor, John Blatnik, called it. All that
sewage ringed with the flowering Cherry Blossoms made him think
of that image.
The issues facing the Clean Water Act and the Nation's
waters today are ever more complex and difficult to address;
nonetheless malevolent, perhaps even more fearsome and more
dangerous than the early threats of pollution. But there are
still three fundamental elements of this Act. First, sound
science and technology should guide our national discharge
standards. Second, we need adequate funding, despite what
Richard Nixon said way back when and the budgets he submitted
that were repeatedly overturned and increased. Despite the
Reagan budget in 1981 that converted the entire sewage
treatment grant program into a loan program and cut it from $6
billion a year to $2 billion, at a time when the smallest
cities of America had to bear the sizeable burdens of cost of
borrowing the money, repaying it with interest to State
revolving loan funds. And, third, a strong enforcement program
still is critical to consistent and effective implementation.
The Federal Government and the States have to work in
partnership. The Clean Water Act was intended as a partnership
program. But we are losing ground. We are losing ground in that
partnership; we are losing ground in oversight of publicly
owned treatment works and private sector treatment activities.
Over the past decade, I have repeatedly expressed my concerns.
This Committee, under both Republican and Democratic
leadership between 2001 and 2009, has issued numerous reports
criticizing the prior administration for cutting Federal and
State funding and personnel to implement the Act; repeatedly
cited EPA for failing to provide a credible Clean Water Act
enforcement program. Time and again the Committee documented
cases where reduced funding for the Clean Water Act programs
directly affected water quality programs of the States.
Congressman Waxman and I, he the Chair of the Government
Oversight Committee, detailed the drastic deterioration to be
EPA's enforcement program during the previous administration.
Simply put, enforcement has set back--or deterioration, I
should say, of the enforcement program has set back progress in
achieving the central goals of the Clean Water Act. The New
York Times, just last month, ran a front page story detailing
the systemic failure by Federal and State governments to
enforce the Clean Water Act. The Times found that ``fewer than
three percent of Clean Water Act violations resulted in fines
or other significant punishment by State officials'' and that
``unchecked pollution remains a problem in many States.''
In the course of the interview I did for that story, I said
EPA and the States have dropped the ball. It is time to pick up
that ball and start moving it again.
I am keen to hear from Administrator Jackson, who comes
with resolve, the commitment, and with a directive from the
President to make this clean water program an effective one.
She sent a memorandum to EPA staff saying ``data available to
EPA shows that, in many parts of the Country, the level of
significant noncompliance with permitting is unacceptably high
and the level of enforcement activity is unacceptably low.'' I
agree. We are going to explore those issues in the course of
today's hearing.
If dischargers are allowed to violate permits, if
enforcement remains only a threat, then the program is failing,
and I look to Administrator Jackson to begin taking the
management steps necessary to protect the water, the public
health, and the environment; and she has already demonstrated
her strength of character and determination to do so and is off
to a very strong start. I welcome Administrator Jackson to this
hearing.
I now turn to Mr. Boozman, who is--or, Mr. Mica, do you
wish to go at this point?
Mr. Mica. Thank you, I will, and I won't take too much
time. I had the great pleasure of being on the Committee for 17
years and only as a Ranking Member for the full Committee the
past three years; gotten more into some of these water
resources issues.
Let me say, for our side of the aisle, I don't know anybody
that I have talked to in Congress and our Republican conference
that is not a strong advocate of making certain that we have
clean water, that we go after people who carelessly flaunt
laws, regulations, that pollute. We should do everything we can
in a bipartisan effort to make certain that the beautiful land
and water that we have been given in this Country is preserved
and not polluted. So I don't know anyone on our side of the
aisle that isn't in favor of that.
I think our emphasis is that we take our hard-earned
taxpayers' money and we do the best job we can, cost-
effectively cleaning up, enforcing. Learned a little bit about
the enforcement regiment, and one of the things I did learn is,
of course, the Federal Government can't be everywhere enforcing
every source point problem that we have across the Country. We
do rely on States, and I am told 46 States are responsible for
enforcement, and we want them to do a good job.
One of the things that concerns me right now is they are
strapped just like we are strapped, but even more so because
they actually have to balance their budgets in almost every
instance; we just print more money. But they are strapped, and
if they are charged with enforcement, sometimes they do tend to
cut back, and that could have an impact, an adverse impact
going after people who are violating the laws, regulation, or
polluting. So I think we have to figure out what to do in the
meantime in assisting them, but in a meaningful manner and
cost-effective manner to make certain that what we intend is to
hold people's feet to the fire and hold them responsible if
they are polluting.
Another thing I have learned is some of the data that we
collect, we need some way to get better information. I have
seen some reports that just don't make sense. Some so-called
violations end up being paperwork. I am not so concerned about
people messing up paperwork as I am messing up our waters and
polluting them and going after those violations.
The other thing I will close with is I sat in a couple of
the Chesapeake Bay hearings and that is an incredible national
treasure, but I was interested to learn how you have different
States that contribute to the pollution and different point
sources, and controlling that. Some folks may do a good job;
maybe Virginia does a good job, Maryland may do a good job, we
will take it up to Pennsylvania and maybe not as good a job
there, or some jurisdictions within those State lines. So how
we effectively, in multi-jurisdictional situations, deal with
violators or polluters and making certain that our efforts all
come together and are successful in what we hope to achieve,
which is clean water and dealing with source pollution point
solution.
So we are very open to suggestions working with our
colleagues on the other side of the aisle, and, again, I think
everyone has the same intent, but we want to get there as
effectively and as cost-efficiently as we can for the taxpayer.
Thank you, Mr. Chairman. I yield back.
Mr. Oberstar. Thank you for those very pertinent and
thoughtful reflections. I appreciate your comments.
Now the Vice Chair of the Committee, Mr. Rahall. Welcome.
Mr. Rahall. Thank you, Mr. Chair.
Mr. Oberstar. You have sat here on the Committee with me
through many, many years of hearings on this legislation.
Mr. Rahall. I was just prepared to do that same recalling
of our past histories on this legislation.
I do appreciate your having these oversight hearings today,
Mr. Chairman, and appreciate Administrator Lisa Jackson and her
staff for taking the time to be with us.
The Clean Water Act, as we all know, for the most part has
served this Nation and its citizens well, but as we hold this
hearing on the CWA after 37 years, it is apparent that this law
is still a study in perpetual motion. As you have so well
recalled, Mr. Chairman, I was a Member of this Committee, as,
of course, you were when we passed major amendments to the
Federal Water Pollution Control Act of 1972 in the form of the
CWA Act of 1977, and, as well, the last time that significant
amendments were made by the Water Quality Act of 1987.
In 1977, myself, as a freshman Member of this body, in
addition to passing amendments to the CWA that year, the
Congress also enacted the landmark Surface Mining Control and
Reclamation Act of 1977, otherwise known as SMCRA. That is the
Federal law which regulates surface coal mining and reclamation
in the U.S., short of water quality considerations, and that is
where, of course, the Clean Water Act picks up.
Ever since 1977 there has been an attempt to dovetail these
two laws. At times they have worked relatively well together,
but there have also been conflicts between them, as we are
seeing today in the Appalachian coal fields.
The Surface Mining Act explicitly provides for the practice
known as mountain removal mining, MTR, under a prescribed set
of circumstances. Meanwhile, under the Clean Water Act,
companies engaging in this activity are required to obtain
their Section 401 certification, NPDES permit, and Section 404
permits. The situation we face today in the Appalachian coal
fields is that the EPA has invoked its authority to, for lack
of a better term, second-guess the U.S. Army Corps of
Engineers' issuance of these Section 404 permits.
At stake are not just 79 mining permits now subject to what
is being called an enhanced review process, but also, and more
fundamentally, the future of surface mining. In fact, many of
my constituents believe that the future of coal, all coal, is
at stake in this discussion. There is a great deal of
frustration and concern in the Appalachian coal fields as a
result of the current review, and I cannot under-emphasize that
fact.
I have to say that I share that concern. For many years,
our coal miners, our coal operators, mining community
residents, State agencies, and those best representing coal
regions have sought clarity and certainty about the permitting
process. We want to know what the rules are so that miners can
stay on the job and continue to fuel America. We all want to do
what is right by the environment. Of course we do. But we must
also protect coal field jobs and the economy.
So I do, as I conclude, thank the Administrator for being
with us today and, most importantly, for maintaining an open
line of communication, as she has, with me on this matter. We
have had several meetings already; we will have more in the
future. I also want to say thank you to the Assistant Secretary
of the Army for Civil Works, Jo-Ellen Darcy, and the U.S. Army
Corps of Engineers for also meeting with me on these issues.
And thank you, Administrator Jackson, for being with us today.
Thank you, Mr. Chairman.
Mr. Oberstar. Thank you, Mr. Rahall.
Mr. Boozman?
Mr. Boozman. Thank you, Mr. Chairman. We do appreciate your
holding this very important hearing today, and we appreciate
having you, Ms. Jackson, before us, and we appreciate your hard
work.
We celebrate the 37th anniversary of the Clean Water Act
and review its compliance and enforcement programs today. When
the Clean Water Act was enacted in 1972, it was during an era
when raw sewage was being dumped into the Nation's rivers and
streams. While the Clean Water Act has put a stop to this
practice, today's pollutants are subtle and much more difficult
to detect. Recently, The New York Times, based on EPA and State
data, revealed that there were allegedly more than half a
million Clean Water Act violations in the last five years.
Unfortunately, the data is filled with unexplained
anomalies. For instance, the World War II Memorial in
Washington, D.C., less than three miles from here, is cited as
having six separate Clean Water Act violations. The Blue Plains
Waste Water Treatment Facility in Washington, D.C., is having
as cited 62 separate violations. In another case, no violations
were reported, but fines were collected by the agency.
As the Chairman stated, there was overwhelming support of
the Clean Water Act, and the challenge of today is to focus on
bipartisan solutions as we go forward.
I think one of the solutions is helping the agency to
collect data in a uniform manner that will allow us to
determine the effectiveness of compliance and enforcement. The
database utilized by the EPA is full of anomalies which calls
into question the value of the data being collected. For
purposes of collected data, compliance, and enforcement, the
agency divides national pollution discharge elimination system
permits into two categories, those that involve major discharge
flows of one million gallons or more and those with less
volumes or flow. There are 6700 individual permits in the major
category and 39,000 in the non-major category involving less
effluent discharge.
But the agency collects these data differently from major
and non-major discharge permit holders, and there are
differences in how States report information to the agency. It
is not always clear whether a violation is a paperwork
violation or something far more serious.
EPA itself acknowledges that there are problems with the
database. Until we solve the issues surrounding the database
utilized by the agency, we will be unable to determine the
effectiveness of the compliance enforcement programs. Congress
and the Administration should continue to focus on water
quality violations, not paperwork errors. The EPA and the
States should work quickly to resolve water quality violations
through compliance assistance. Only when compliance assistance
does not resolve the violation, the agency and the States
should then move towards more formal enforcement actions.
Mr. Chairman, we stand ready to work with you and the
Administration to ensure that the compliance and enforcement
regime authorized by the Clean Water Act is robust and
responsive to the rapidly changing needs of the Nation. I think
it is clear that the agency's databases need to be improved,
and I hope the witnesses today will help us in that effort.
Thank you, Mr. Chairman.
Mr. Oberstar. I thank the gentleman for those observations.
Mr. Boozman. Mr. Chairman, with your permission, I have
some testimony that I would like to be entered into the record,
if that is okay.
Mr. Oberstar. The statement from ARTBA and others we have
also received, and we will include that in the Committee
hearing record, with a notation, however, that the thrust of
the testimony is directed toward the Clean Water Restoration
Act, which is not the subject of today's hearing.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] T2881.009
[GRAPHIC] [TIFF OMITTED] T2881.010
[GRAPHIC] [TIFF OMITTED] T2881.011
[GRAPHIC] [TIFF OMITTED] T2881.012
[GRAPHIC] [TIFF OMITTED] T2881.013
[GRAPHIC] [TIFF OMITTED] T2881.014
[GRAPHIC] [TIFF OMITTED] T2881.015
[GRAPHIC] [TIFF OMITTED] T2881.016
[GRAPHIC] [TIFF OMITTED] T2881.017
[GRAPHIC] [TIFF OMITTED] T2881.018
Mr. Oberstar. The gentleman made an interesting observation
and it does seem somewhat incongruous that a monument on the
National Mall should be cited. But I recall very clearly in the
construction the contractor did not take appropriate steps to
control sediment from the construction site that was running
down 14th Street, and that point is the lowest point in
Washington, D.C., and discharges actually reached the Potomac
directly along 14th Street, so the contractor was indeed cited.
And the monument, with the pool that has chlorine in it, also
runs into the gutters on 14th Street and goes directly into the
Potomac. That has to be stopped. And it does seem incongruous
that a monument should be a pollution source, but it is.
Do others wish to be heard? Ms. Johnson, Chair of our Water
Resource Subcommittee.
Ms. Johnson. Thank you very much, Mr. Chairman, for holding
this hearing. This is an important anniversary, and one thing
we do know, that our water is cleaner and safer than it was 37
years ago, and I look forward to hearing the witnesses, and I
ask unanimous consent to put my statement in the record.
Mr. Oberstar. Without objection, so ordered.
Mr. Ehlers?
Mr. Ehlers. Thank you, Mr. Chairman. It is a pleasure to be
here and note this important event, and I certainly want to
thank Administrator Jackson for being here. You hold one of the
most important jobs in the Federal Government and we certainly
appreciate it and realize it here.
I also would note that, coming from a solid Dutch
background, I will not offer this statement with as much
emotion as you offered yours, Mr. Chairman, but I totally agree
with your comments and what you said, and I appreciate the
fervor that you show on this particular subject. You can tell
we are both from the Great Lakes area.
But as an environmentalist, a scientist, and a
representative from the Great Lakes State of Michigan, I know
that water is our most important natural resource. However,
water is virtually useless unless it is appropriately clean.
Regrettably, for hundreds of years, we as a Nation neglected
our God-given responsibility to preserve and protect our clean
water resources. We degraded our water so badly that some river
surfaces actually caught on fire and fish died in mass
quantities. However, we were able to reverse this degradation
by passing the Clean Water Act in 1972.
Since that time, we have made significant progress in
bringing our waters back to a healthy state. That being said,
we still have a long way to go, especially in the Great Lakes;
and I am pleased that the Legacy Act has enabled us to make
considerable progress there. But, in fact, I am afraid that we
may once again be on a downward path of neglect due to
regulatory uncertainty caused by two differing U.S. Supreme
Court cases. Hopefully, we will l earn from our past mistakes
and clarify these uncertainties so that we can ensure clean
waters are passed along to our children and their children.
We must act as a Congress to clarify the scope of the Clean
Water Act. And, in the interest of time, I will not go into all
the details, but Chairman Oberstar has been a leader on this
and I have been pleased to support his efforts in the past, and
I hope we will be able to continue to make progress on that
issue.
Although may people fixate on the interpretation of legal
terms such as navigable waters and waters of the United States,
it is important that we not lose sight of the basic intent of
the Clean Water Restoration Act, which is to protect our waters
from pollution. We must never forget that and we must earnestly
and sincerely pursue that.
Mr. Chairman, I look forward to working with you and the
rest of the Committee to ensure the continuing success of the
Clean Water Act, and thank you for all your good work on it. We
have a lot of work to do yet.
Mr. Oberstar. We most certainly do. I am grateful for your
scientific input and assessment, and your thoughtful approach
to these issues. Thank you for your participation.
Do other Members wish to be heard? Mrs. Capito?
Mrs. Capito. Thank you, Mr. Chairman. Thank you for holding
this very important hearing on a very important issue. It is
clear that protecting our Nation's water is important to all of
us, and we depend on Federal and State agencies to monitor
water conditions.
As Members of Congress, we have a responsibility to
exercise legitimate oversight of these agencies. With that in
mind, I would like to thank all of today's witnesses and,
Administrator Jackson, I appreciate your being here.
As you are well aware, your agency is engaged in an
elevated review process for coal mining permits in the
Appalachian Corps district. Generally speaking, the process of
obtaining Federal coal mine permits is complicated and can
involve years of coordinated effort before the companies,
interest groups, and State and Federal agencies. Now the EPA
has added another layer of review, in essence, a do-over,
further delaying permitting decisions at the cost of West
Virginia jobs. We are very frustrated.
This new process is second-guessing decisions made by
qualified experts in Federal and State agencies, including
permits on which the EPA has already commented. EPA is
essentially holding back critical permits until National
Headquarters reviews and approves them. The way I and many of
my States see this, this is a veiled attempt to block not just
surface mining, but all mining of coal.
Over the course of the summer, I met with officials from
your agency and highlighted the stakes associated with
continued delays in the permit review process. In my
discussions with officials at EPA, I have regularly stressed
that their decisions stand to have real implications on West
Virginians. I was, however, repeatedly assured of an expedient
review process. Administrator Jackson, it has now been 18 weeks
since that meeting, added to the years these permits have been
active, and there has been very little or no movement.
Administrator, West Virginians are becoming very frustrated
and there are a lot of unanswered questions. We are concerned
about our jobs, our families, and our communities. We are
hearing what you say, but we are watching much more closely
what you do, and we are extremely concerned. Miners across
Appalachia want to play by the rules. We want clean water. They
want to know and work with your agency to resolve these permits
in a way that protect both jobs and the environment. But as it
stands right now, we don't know what rules you want us to play
by, and your agency's indecision is jeopardizing many jobs in
my State. I look forward to your testimony clearing up this
uncertainty.
Thank you, Mr. Chairman.
Mr. Oberstar. Thank you, Mrs. Capito.
Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chair. I add my thanks for
holding this very important hearing.
In my Subcommittee of Water and Power, we are very
concerned. And thank you, Ms. Jackson, the work that EPA has
done in my area in California has been exemplary.
I caution some of the Members and I can tell you that for
years we have been looking at contaminated aquifers as a result
of discharges from either farming or some of the aerospace
industry that has contaminated our waterways. And while we may
think that these may be a little bit harsh, I would protect the
water that my grandchildren and my great-grandson are going to
be utilizing, and that we must be vigilant to ensure that any
waters that are affected are cleaned for the use of those
following us.
It is very important. We find that we don't have any new
water sources. Mother Earth hasn't given us any more, so we
need to be able to ensure that what we have we recycle, we
retreat, whatever needs to be done to it, and that the
responsible parties own up to it or take steps not to pollute
those waters.
So it is a very key issue for me and for some of those that
I know feel the same way. So thank you, Mr. Chair.
Mr. Oberstar. Thank you.
Gentleman from Ohio, Mr. Latta.
Mr. Latta. Well, thank you very much, Mr. Chairman. I
appreciate the opportunity of being here today on this hearing.
Administrator Jackson, thank you so much for being with us.
If I may, Mr. Chairman, I would like to summarize my
written remarks for the record today.
I want to echo Mr. Mica's remarks that we are all in favor
of clean water. One of the things, though, that he mentioned, I
think just to paraphrase it, is that we need to be very, very
practical with what we are doing.
In a later life or earlier life, I should say, I served as
a Wood County Commissioner for six years, and as a
commissioner, besides all of the things from the budget to you
name it, water and sewer was one of our areas that we were
assigned in the State of Ohio. Wood County is approximately 619
square miles; we have all or part of five cities, 21 villages;
many, many unincorporated areas in the county. I have the
Maumee River as my northern boundary, which flows into Lake
Erie, so we are all very cognizant of that. Also, before the
settlers came, it was also known as the Great Black Swamp. So
we have a very unique ecosystem in my area.
But one of the things, to be honest, when I was a county
commissioner, your day was going to start off bad when the mail
came and we got a letter from the EPA that started off Dear
Commissioners. What that usually meant was one of our
communities in our counties was being placed under orders. And
when you are out in your communities all the time, you really
get to know it and you get to know what they can afford to do.
Now, as a Member of Congress, I have all or part of 16
counties in northwest and north central Ohio, and, as I said, I
am out in my district all the time. There is great
consternation out there when these orders are received. Just to
give you a couple points, in some cases it would actually be
cheaper for us to actually buy the community than do the
projects that these localities are being put under, and that is
not a joke. Not too long ago, I was at one of my smaller
villages, and when you have folks that are in these villages
that are now senior citizens, they have very limited incomes,
or folks that can't move away because of their economic status
and this is their home. But the Toledo Metropolitan Council of
Governments has done a study for us not too long ago, and if
you live in a large metropolitan area, some of these projects
would cost around $2,000 per household. But in some of these
areas, where they only have 300 and some people left in the
entire village, it would be over $22,000. Literally, that is
what I mean, it would be cheaper for us to buy them out.
In other cases, cities that have intakes out into the
different rivers in my area have situations where they are
expected to put the water back into the river cleaner than they
pulled it out. And my question always is how clean is it and
how far down the river is it before it is commingled to be at
the exact same level it was before the city had it come out of
the intake.
So one of the problems we run into, then, we have a lot of
companies in my area and I have the largest manufacturing
district in Ohio, the 15th largest in Congress, and we are hard
hit with unemployment and trying to get people back to work. So
we have companies out there now that are actually saying, you
know, if these projects have to go through, we are just going
to move out because their parent companies say we can't have
you there, we can't afford to compete with somebody else with
those high costs.
So one of the things I would like to stress is I think that
when these orders are being placed and when the rules are being
made, I think they have to be cognizant of the fact of what is
going on out there. And as was already mentioned by our Ranking
Member and also by Mr. Boozman, we are pretty hard hit out
there, and we have to really look at what we are doing.
So I appreciate your being here and hear from your
testimony today, and, Mr. Chairman, I appreciate the
opportunity. Thank you.
Mr. Oberstar. I thank the gentleman for those comments. I
am particularly touched by his reference to the cost of cleanup
shouldered by local government. We had intended in the Clean
Water, while not in legislation, but as a matter of policy,
that the early going would be some 70 percent of the funds
would be directed toward the biggest waste streams in the
Nation, and by the early 1980s that would be reversed, that 60
percent of the funding would go to smaller communities, those
under 50,000 population. That was at the point at which the
Reagan Administration converted from a grant to a loan program
and reduced the total size of the program.
In the stimulus this year we had $4.6 billion for
wastewater treatment and an additional $100 million for
drinking water systems. That was to go out by rankings of the
States. I think we need--and with some initial problems due to
the Buy America language, that funding is underway. We need to
continue it and we need to continue that commitment to deliver
on the commitment we made to small communities to help them
with the costs of cleanup. In the end, it is a cost, but it is
a shared cost that all America has an interest in clean water
and all America has an interest in cleaning up.
So I welcome the gentleman's comments and welcome his
participation.
Mr. Hall.
Mr. Hall. Thank you, Mr. Chairman, and thank you for
holding this hearing.
Administrator Jackson, thank you for being here.
In my district also we have all kinds of water problems, a
district that spans from the Delaware across the Hudson River,
all the way to the Connecticut border, and have waterways that
flow directly into Long Island Sound through Connecticut and
others that flow into Delaware Bay and, of course, the Hudson
flowing down through New York Harbor.
We have, in Hopewell Junction, my home county in Dutchess,
we have a trichloroethylene spill that has contaminated a plume
of aquifer a mile and a half long and I believe three dozen
families or so on bottled or trucked-in water because their
wells are unsafe for them to drink, and they have vapor
intrusion systems that are being provided by EPA and DEC. We
have schools right now in my district where students with high
blood pressure problems are being warned not to drink the water
from the drinking fountains because of high sodium levels. We
have every lake, virtually, in my district suffering from
eutrophication from over-fertilization of nitrates and runoff
from either lawn chemicals or from inadequate sewage treatment
plants that are old and failing.
My towns also can't afford it, but the question they are
asking me first is not--they do ask how we are going to pay for
it, but the first thing they say is we need clean water for our
children and ourselves and our future generations; and the cost
will be borne somehow by a combination of Federal, State, and
local funds, but we do need to figure out the most efficient
way to do it, but especially we need to do it.
So thank you so much for being here, and I yield back.
Mr. Oberstar. I thank the gentleman.
The gentleman from Maryland, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman. First of
all, I want to associate myself with the comments of Mrs.
Napolitano and I want to thank you, Mr. Chairman, for calling
this hearing on the importance of reviving real enforcement of
the Clean Water Act.
The past eight years were an era of conscious neglect of
environmental laws, and the data collected by both EPA and The
New York Times bears that out. Staggering statistics have been
recently released by each of these entities. As Administrator
Lisa Jackson points out in her testimony, roughly one in four
major facilities subject to Clean Water Act enforcement was in
substantial noncompliance. Possibly more disturbing was the
conclusion reached by this Committee and others that the data
accumulated by The New York Times was more comprehensive than
the EPA's own information.
I am pleased to read of the new initiatives taking place at
the EPA under the leadership of Ms. Jackson. She has made a
commitment both to her employees at the EPA and to the American
public that it is a new day at the EPA. Based upon her stellar
reputation and her actions so far, I believe that her
leadership will bring about real institutional reform, because
it will take nothing short of that to rebuild the public's
trust in this agency.
When, according to The New York Times, only 2.2 percent of
the Clean Water Act violations led to enforcement actions,
there is a natural skepticism as to whether this agency was
truly committed to its mission. As I am sure the Chairman will
agree, delegation of responsibility to the States is no excuse
for dropping the ball. While the States had their failures,
EPA's unwillingness to exercise its own authority and to ensure
enforcement at the State level was negligent disregard for the
American people at best. This is our watch.
As I mentioned, I am encouraged by Ms. Jackson's bold
actions in her short tenure at the EPA. I look forward to her
testimony, as well as the testimony of all of our witnesses,
and hope that this yields a productive discussion about this
critical issue.
With that, Mr. Chairman, I yield back.
Mr. Oberstar. I thank the gentleman.
Mr. Arcuri.
Mr. Arcuri. Thank you, Mr. Chairman. Thank you for holding
this hearing.
I would like to thank Administrator Jackson and the other
witnesses for being here.
The enactment of the Clean Water Act was a seminal event in
our Nation's history and the preservation of its natural
beauty. Being from New York, I consider myself exceptionally
fortunate; we not only have the benefits of the Great Lakes,
being on the Great Lakes, but also abundant water. It is a
wonderful natural resource to have and it certainly makes the
quality of life substantially higher.
But I am very concerned with the fact that the Energy
Policy Act of 2005 exempted some of the exploration activities
for natural gas from the Clean Water Act. We are very fortunate
in New York, we are on the Marcellus shale deposit and the
Utica shale deposit, which means that we have access to a
wonderful natural resource, that is, natural gas, and clearly
it is important that we do all we can to bring that natural gas
and use it to develop energy independence. But we shouldn't do
it at the expense of our greatest natural resource, which is
our water.
I have a concern because while the State of New York takes
strong measures to regulate and to enforce the same type of EPA
laws, other States don't necessarily have to do that.
Obviously, just to give you an example, the northernmost point
of Chesapeake Bay begins in my district, in the Village of
Cooperstown, and that runs right through the Marcellus shale
deposits. So, obviously, it is incumbent upon New York and it
is important that New York takes steps to make sure that the
water that runs through there is clean so that the Chesapeake
Bay doesn't experience the pollution as a result of what we
call hydraulic fracking the natural gas development. So I think
it is very important that we take measures to ensure that the
Energy Policy Act of 2005 is changed and amended so that the
Clean Water Act also applies to that.
There is no question that achieving energy independence is
important, but it should not come at the cost of protecting our
greatest natural resource, which is our water.
Thank you, Mr. Chairman, again, for holding this hearing,
and I yield back the balance of my time.
Mr. Oberstar. Thank you very much.
We will now proceed with our very patient Administrator.
You have heard a wide range of views from Members and will hear
a lot more after your testimony is delivered. Thank you very
much for participating today and for your vigorous start with
EPA.
TESTIMONY OF THE HONORABLE LISA P. JACKSON, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Ms. Jackson. Thanks, Mr. Chairman. I will try to be brief,
but I ask for your patience too, because there are a number of
things I want to make sure I present to the Members of the
Committee.
Thank you to the Committee for having me here today. I am
delighted to be here to discuss the state of our Nation's
waters. I would like to focus my remarks on our Nation's water
quality and the challenges we face to improve it, along with
EPA's implementation of the Clean Water Act and the steps we
are taking to improve Clean Water Act compliance and strengthen
our clean water enforcement program.
We certainly all agree, and I heard this morning, that
having clean and safe water in our communities is a right for
all Americans. We also know that clean water is essential to
our health, our environment, and our economy. As we commemorate
the 37th anniversary of the Clean Water Act, I want to begin by
thanking you, Mr. Chairman, for your steadfast leadership and
constant concern for the issue of clean water. I do not believe
it is an understatement to say that we would not be where we
are today were it not for your leadership and many Members of
this Committee, and I thank you for that.
But we must also reflect on the progress that has been made
over the past 37 years and also focus on the enormous
challenges ahead. To put it in a phrase, Mr. Chairman, we have
a long way to go.
The Clean Water Act was enacted to restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters, and EPA is the agency that has primary responsibility
to achieve these goals. As such, it is EPA's mandate to use its
resources effectively, including vigorously enforcing the rule
of law to achieve this result.
There are significant water quality problems facing too
many communities. There are many diffuse pollution sources that
are not regulated by the Clean Water Act. There is inadequate
information about some sources, which can limit the ability to
identify serious problems quickly and the ability to take
prompt actions to correct them. And adding to our challenges,
recent Supreme Court decisions have increased the difficulty of
determining which water bodies are covered by the Clean Water
Act in many parts of the Country.
The main tool that EPA has to achieve positive water
quality results is the National Pollutant Discharge Elimination
System, or the NPDES program. EPA established this program soon
after the passage of the Clean Water Act, and its
implementation by EPA and authorized States has resulted in
significant water quality improvements throughout the Country.
Under the Clean Water Act adopted in 1972, the universe to
be covered by the NPDES permit program was estimated to be
100,000 point sources. Today, nearly 1 million point sources
are covered by the NPDES program. This increase has
significantly affected the ability of EPA and the States to
administer and enforce the NPDES program. We are falling short
of this Administration's expectations for the effectiveness of
our clean water enforcement programs. Simply put, Mr. Chairman,
the time is long overdue for EPA to reexamine its approach to
Clean Water Act NPDES enforcement to be better equipped to
address the water pollution challenges of this century.
Data available to EPA shows that, in many parts of the
Country, the level of significant noncompliance with permitting
requirements is unacceptably high and the level of enforcement
activity is unacceptably low. For example, one of every four of
the largest Clean Water Act dischargers had significant
violations in 2008. Many of these violations were serious
effluent violations or failure to comply with existing
enforcement orders.
The Government's enforcement response to the violations is
uneven across the Country. For example, a violation in one
State results in the assessment of mandatory minimum penalties,
while in another State no enforcement action is taken for the
exact same violation. This situation creates a competitive
disadvantage for States that are enforcing the law, and we need
to change this.
Strong and fair compliance and enforcement across the
Country is vital to establishing a level playing field for
industrial facilities, preventing some regions from attempting
to achieve an economic advantage over others. Most importantly,
clean water is not a luxury. Rather, we need to make sure that
all citizens, regardless of the State that they live in, should
be able to drink safe water and swim and play in clean lakes,
rivers, and bays.
We need to address these key problems, and that is why I am
happy today to announce EPA's new Clean Water Act enforcement
plan.
EPA's Enforcement Office, led by Cynthia Giles, has decided
to act on three crucial steps to strengthen Federal and State
Clean Water Act enforcement to better protect water quality.
First, we need to develop more innovative approaches to
target our enforcement to the most serious violations and the
most significant sources. We need to ensure that the million
permits out there we find them to be protective and that
appropriate civil and criminal enforcement for factories and
large wastewater treatment plants that unlawfully discharge
pollutants to our waterways exist. We need to reshape our
enforcement program to be more effective in tackling violations
from the many dispersed sources that continue to be serious
threats to our waters and a major reason many of our waters
don't meet standards. Some of the biggest threats are posed by
concentrated animal feeding operations and by contaminated
stormwater flows from industrial facilities, construction
sites, and urban streets that end up in our waters.
Second, we need to strengthen our oversight of State
permitting and enforcement programs. Many States have strong
water quality protection programs and take enforcement to
ensure compliance, but we have seen great variability amongst
the States in enforcement performance. It is EPA's job to
clearly articulate the acceptable bar for State clean water
programs and consistently hold States accountable. In
situations where States are not issuing protective permits or
taking enforcement, EPA needs to act to strengthen programs and
pursue Federal enforcement as necessary.
Third, we are and will continue to take immediate steps to
improve transparency and accountability. We have a
responsibility to tell it like it is to the American public.
We have already published the data and information that EPA
has on Clean Water Act compliance and enforcement across the
Country on our Web site. We will continue this practice as new
information becomes available. We are also working to
accelerate the development of 21st century information
technology tools to help us gather information more efficiently
and make it easier for the public to access that information.
For example, I am directing my staff to quickly develop a
proposed rule requiring electronic reporting from regulated
facilities to replace the current paper-based system.
Electronic reporting could save regulated facilities, EPA, and
the States millions of dollars each year. At the same time,
providing that information to the public shines a spotlight on
facility performance.
We believe that making information on environmental
discharges available to the public will increase the pressure
on regulated facilities to self-police and reduce their
pollution, just as we have seen with the Toxics Release
Inventory.
EPA plans to work closely with States to implement these
actions and make long-term improvements in our Clean Water Act
enforcement and compliance plan.
I could quickly highlight some actions we are taking now to
focus our enforcement actions on those actions that pose a
serious threat to water quality.
We are strengthening our efforts to enforce existing rules
from limiting pollution from concentrated animal feeding
operations. Where there are facilities or clusters of
facilities with large numbers of animals that are discharging
without a permit or in violation of their permits, they can
cause significant pollution problems and concerns to
communities. It is difficult to know where these facilities are
when they do not have to apply for permits; however, we are
working to develop innovative strategies that will identify the
facilities that are violating requirements and present the most
significant threats, and we will ensure that appropriate
enforcement action is taken in these situations.
Mr. Chairman, enforcement is one tool that we can use to
address water quality problems, but long experience has shown
that effective enforcement is essential to the integrity of our
Clean Water Act protections and enforcement makes a real
difference in our ability to deliver the water quality the
American public expects.
EPA is committed to building the Nation's confidence that
these resources will be protected.
We greatly appreciate the leadership of this Committee and
we look forward to coordinating with the Chairman and the
entire Committee as we work to achieve these important goals.
Thank you.
Mr. Oberstar. Thank you very much, Madam Administrator.
Your testimony is refreshing; it shows a firm commitment, a
determination to move ahead, and you have already laid that on
the table. You got it going in the right direction.
Just a comment before I go to Members for our overall sort
of structure, and that is Section 309 of the Clean Water Act
sets the requirements for calculation of a civil penalty for
violation of the permitting requirements. It establishes as
criteria seriousness of the violation, the history of
violations, and the economic benefit resulting from the
violation, that is, the economic benefit that would result if
the violation is lifted, cured. The law is clear that economic
benefit from violation of the Clean Water Act should be
recaptured in the potential enforcement not only to reduce the
incentive to pollute, but to promote deterrents.
So I want to say that I want Members to keep that in mind
as they go forward, and I am going to now recognize Members who
did not make an opening statement, in the order in which they
serve on the Committee. So we will begin with Mr. Kagen.
Mr. Kagen. Thank you, Mr. Chairman. It is an honor to
follow you at any point in time. Because of your great efforts,
this Committee is going to move forward a bill that really will
address its title, the Clean Water Act.
Administrator Jackson, thank you for being here this
morning. Thank you for the work you are about to do. I don't
envy you in your position. I came to Congress in 2006 as a
doctor; I thought all I had to do was fix health care. Then the
roof caved in on the economy and everything else that we are
doing. So I understand what it is like to have a large mess to
clean up.
You mentioned in your opening remarks about the importance
of enforcement, the importance of oversight and providing
accountability and transparency in everything that you intend
to be doing, and you hadn't focused on prevention. We are going
to be hearing testimony after yours of one of my constituents
from northeast Wisconsin, Mrs. Treml, about her situation that
her family and her neighbors and many people in the region
experience when farming and agricultural activities take place
over an escarpment, a land mass that allows nutrient material
and manure to seep directly into the drinking water.
But what are you doing in terms of prevention? What is your
orientation?
Ms. Jackson. Thank you, Congressman. The entire NPDES
structure, the idea of requiring a permit from those who intend
to discharge into waters of the United States was intended to
say up front that we know that any amount of pollution acts as
a detriment to water quality. There are some times when we have
to allow some amount of pollution; that is what the permits
are, but also gives us a framework to come back later to find
out if people are abiding by it.
The particular case that you reference--and I have read the
testimony--is that of an issue where we do not have
jurisdiction, per se. The Clean Water Act does not cover
permitting or prevention for groundwater seepage of nutrients.
In this case, I understand it actually wasn't through
groundwater, it sort of ran over a snow pack or land and into a
well.
Mr. Kagen. So it is true, then, that in the existing
legislation and laws there is no legislative language for you
to follow that would allow for your jurisdiction over the
runoff of agricultural wastes?
Ms. Jackson. The runoff, yes. If it ends up into surface
water and it is jurisdictional surface water, there is a
potential for permitting and enforcement in those cases, and we
are committing, as I said in my testimony, to vigorous
enforcement there. The particular case in Ms. Treml's case was
one in which there was no surface water nexus, so I am not sure
that there would have----
Mr. Kagen. Is it also true that entities in agriculture and
other businesses can self-regulate themselves and self-
determine what they are going to allow to run off their
properties or into our waterways?
Ms. Jackson. Well, the current CAFO rules say that a
concentrated animal feeding operation should identify whether
it believes it will discharge, and then, and only then, will it
be required to get a permit. So for inadvertent discharges or
discharges that end up entering surface water, we cannot say,
right now, to a facility you are required to have this permit,
they must self-identify.
Mr. Kagen. Well, it is an obvious thing to point out, but I
will point it out, that no matter how perfect we are in
crafting legislation to help prevent runoffs, to help prevent
the pollution of our waterways, it really does come down to
human behavior and to the judgment of people who are operating
their businesses, whether it is an agricultural industry or
otherwise, to not just interpret the law, but to understand
what would be good for their environment and also for their
neighbors.
Along those lines, do you feel that the local Department of
Natural Resources in States like Wisconsin are adequately
staffed?
Ms. Jackson. I believe, sir, that resources are a real
concern. As we have learned more about the threats to our
drinking water and our surface water, a great deal of the
program really does fall not only on State governments, but
oftentimes--I know from my experience in New Jersey--to local
jurisdictions--county, health departments; very important to
ensuring safe drinking water. And I know and agree with
comments made earlier that these are tough times and that
resources are a real concern.
Mr. Kagen. Thank you for your comments. As someone who
represents some of the greatest measurement of coastline, not
just Lake Michigan, but many of the lakes and rivers in
northeast Wisconsin, it is a pleasure to look forward to
working with you and making certain that we can prevent
additional problems. It is a lot easier to prevent a problem
than to clean it up after it has already taken up, and it is
also more cost-effective.
And I yield back my four seconds.
Mr. Oberstar. The gentleman from Kansas, Mr. Moran.
Mr. Moran. Mr. Chairman, thank you. I have no questions,
but I would like to seek consent to offer a statement of the
Kansas Farm Bureau regarding the Clean Water Act letter dated
October the 14th from its President, Steve Baccus.
Mr. Oberstar. Without objection, the letter will be
included in the record.
Mr. Moran. Thank you, Mr. Chairman.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] T2881.019
[GRAPHIC] [TIFF OMITTED] T2881.020
Mr. Oberstar. Mr. Duncan.
Mr. Duncan. Well, thank you very much, Mr. Chairman. I just
have a couple questions.
Administrator Jackson, have you considered and do you
support or would you support setting up a clean water trust
fund and wastewater trust fund similar to the aviation and
highway trust funds? Have you ever thought about that?
Ms. Jackson. The Administration has no position on any
additional trust funds for water quality. I would point out
that there has been a significant influx of money in the
revolving funds right now for infrastructure investments in
communities, as the Chairman mentioned, $6 billion for
wastewater and drinking water infrastructure investments,
against, admittedly, a need that is much, much greater than
that.
Mr. Duncan. As I was going through your testimony, it was
very brief, and in that brief testimony I counted up there were
26 times where you used the word enforcement or enforcing.
Maybe you are trying to send a message that you intend to get
very tough, but what I am wondering about, will the EPA try to
help communities, first, to comply, or are you just going to
come down on them without first trying to work with them to
help them come into compliance?
Ms. Jackson. I do, sir, believe that enforcement plays a
very important role. Research shows that enforcement, that the
belief on the part of those who hold permits, that they mean
something, that there is a penalty if they are violated is very
important to changing behavior, it is one of the ways to do it.
In the case of communities, I think EPA has a strong and
long history of trying to work hard to come up with meaningful
time lines to get into compliance, so that when you are talking
about municipal impacts, when you are talking about impacts on
ratepayers, to try to spread that out over a period of time to
be in compliance.
When it comes to industrial facilities, especially
significant noncompliance, remember, this is noncompliance that
often shows a pattern, that in order to be in significant
noncompliance like 25 percent of these facilities are, it is
oftentimes a severe problem and it could be one that has gone
on over time. So the ideal of enforcement is that the
punishment, if you will, should sort of fit the nature of the
crime. If it is a severe problem, we should have some
deterrents and people should know that that is not going to be
tolerated.
Mr. Duncan. I noticed in our briefing paper that all but
four States have assumed the regulatory authority for water
pollution programs. Do you intend to work primarily through the
States first, since 46 States have that primary authority, or
do you see problems with that?
Ms. Jackson. No, sir. I think we absolutely must work with
the States. Forty-six out of 50 have jurisdiction; they are
delegated to run these programs and they are delegated
essentially to stand in EPA's footsteps and permit and enforce
under the Clean Water Act. As I said in my testimony, I think
EPA's role, 37 years after the Act was passed, is to act as a
fair arbiter, look across the Country and ensure that a
violation in one State is being handled similarly to another;
otherwise, there is an unfair playing field for business and an
unfair playing field, frankly, for clean water.
Mr. Duncan. Do you think that the States are doing an
adequate or good or excellent job on this in those duties at
this point?
Ms. Jackson. I think that it varies across the Country.
There are States who run very good programs, and it also
depends on the program. I think almost every--I would hesitate
to guess, this is an educated guess, that every State is
balancing its resources as best it can. With the explosion in
the universe of permitted facilities from 100,000 expected to
over a million, there is some juggling, and I think it is EPA's
job to help States figure out where enforcement should be
targeted to get clean water. Not to get huge penalties, to get
cleaner water. Where can we have a big impact on water quality?
And that is where we should use limited resources.
Mr. Duncan. What you have now, you have two-thirds of the
counties in the U.S. are losing population. But then you have
real fast growth in certain other areas, so the circumstances
and the needs and the resources vary widely across the Country.
So it seems to me that it is going to be pretty difficult to
come up with one size fits all solutions when you have such a
wide variation in the population movement in the Country.
Thank you very much, Mr. Chairman.
Mr. Oberstar. I want to acknowledge the gentleman's work as
Chair of the Water Resources Subcommittee for six years,
holding hearings frequently on the issue that he raised of a
funding mechanism, including a trust fund, including other
ideas such as infrastructure bank. He has been very persistent
and very participatory in discussions of this issue, and this
Committee, in the last Congress, under Ms. Johnson's
leadership, and again in this Congress, continued searching for
an acceptable mechanism to create a trust fund. We look forward
to any ideas the Administration may have on this issue, but the
vexing problem is a revenue source, revenue stream, and we have
to work with Ways and Means Committee on that.
We have already passed our State revolving loan fund, the
reauthorization, passed it in the 110th Congress. The Senate
didn't act on it under threat of veto from the previous
administration, and now the Senate seems to be impaled on its
own procedural problems, so we look forward to them hopefully
doing something--if we were a unicameral legislature, I tell
you we would have a whole lot of stuff in law.
Ms. Richardson.
Ms. Richardson. Thank you, Mr. Chairman. Out of respect to
my colleagues, I am only going to ask one of my questions,
because I know they would like to ask before we break for
votes.
Ms. Jackson, you recently came to my district on October
3rd. Unfortunately, I wasn't aware you were coming; otherwise,
I would have shown you a few things and would have liked to
have chatted with you about my question. I notice in your
testimony you make reference to factories, large wastewater
treatment plants, animal feeding, industrial facilities,
construction sites, urban streets into our waters, but you
failed to say anything about beaches and flood channels that
are going into our water that is serious pollutants and many
problems in my community.
In 2007, the beach closings and advisories nationwide hit
their second highest level in 18 years. The Natural Resources
Defense Council has been tracking them since that time, and in
Los Angeles County alone there were over 1,696 beach closings
and advisory days due to elevated bacteria levels, sewage
spills, and stormwater runoff.
What do you intend upon doing about this and what
additional resources do you think the EPA can bring to bear to
focus enforcement in this area?
As I said, I was a little disappointed that in your
testimony there was absolutely no reference to these areas,
which for me, coastal communities that many of us represent, is
a very serious problem.
Ms. Jackson. Thank you. I do apologize for the oversight,
and I will get back out and I would love to see you in your
district, Ms. Richardson. Let me say, coming from New Jersey,
that perhaps it was an era of taking for granted something,
which is that, yes, our coastal areas tend to be the final
outfall. You know, we spend so much time trying to prevent any
major contamination entering waterways, but EPA has had, for
years, a strong emphasis on wet weather flows on combined sewer
overflows, municipal sanitary sewer systems, trying to get old
facilities under contract to try to ensure that, whether it be
floatables or pathogen contamination, that we reduce and, over
time, see fewer and fewer beach closures and other water
quality incidents further upstream of the beaches. So it is an
oversight not to mention that. Beaches ultimately see quite
clearly the impacts of water quality degradation.
All of the things that I mentioned in my testimony would
have the kinds of impacts that I think you would hope for,
specifically the emphasis on looking for enforcement on the
places that have the most potential to impact water quality and
also to impact recreation or places like beaches, where people
congregate in order to specifically enjoy water quality and
enjoy the resource of the water.
I believe that the emphasis on the major permittees is
important, but the non-point source pollution, the kinds you
mentioned, especially stormwater discharge, whether it be from
agricultural operations or urban streets, is a huge issue that
is quite visible along our beaches as well. So as we look to
step up enforcement to target our enforcement, I commit that we
will make sure that one of the things we look at are impacts on
outfalls that can potentially impact beach water quality and
beach closure issues as well.
Ms. Richardson. Thank you very much.
Ms. Jackson. Thank you.
Mr. Oberstar. Ms. Schmidt, before you leave, would you like
to--we have plenty of time to vote.
Ms. Schmidt. I am fine.
Mr. Oberstar. All right.
Ms. Fallin.
Ms. Fallin. Ms. Jackson, I appreciate your coming today.
Thank you for being here. Do you feel like States are doing all
that they need to be doing to make sure that we have clean
water and enforcing the rules and regulations that we have
right now?
Ms. Jackson. I think State performance varies. Let me also
point out that the four States where EPA implements the Clean
Water Act, our performance varies, and I think that one of the
things we need to be able to do is hold up an honest mirror,
give information, as much accurate information as we can about
State performance, and allow States certainly to tell their
story, but also as an agency sort of hold States to a steady
bar.
Ms. Fallin. I understand the need to have uniform
consistency around our Nation as it comes to the States and the
different divisions that they have for enforcement regulations,
but I have been hearing, back in my home State of Oklahoma,
from business communities that they have seen a big difference
in the administration of the EPA since the new Administration
took over, and have just said that they felt like there is a
heavy hand on business right now during this economic
recession.
I guess my only comment would be that as we continue to
make sure that we do keep our environment clean--I am all for
keeping clean water and our environment clean and being
responsible in the business sector--that we also make sure that
we work with the States, that we work with the communities as
we are dealing with the rules and regulations and enforcement
to give them a chance to try to do the right thing.
And I heard your comments that you want to make sure that
they understand there are laws, rules, and regulations, and
they have to comply with that, but I have heard from several
businesses in my community that they are feeling a lot of
pressure right now during a tough time, and they want to
comply, they want to do the right thing, but they want to have
a chance to do the right thing.
That is just my comment.
Ms. Jackson. And I really appreciate it. It gives me a
chance to make a couple of points. First, about Oklahoma, good
inspection coverage of facilities, accurate reporting of
noncompliance, and high rate of timely enforcement. So I think
one of the things that having a level playing field does is
those States who have sort of been on the job, I would hope,
that facilities wouldn't see a huge difference as we say we are
going to raise the bar, because they have already sort of been
working to that standard.
So I am troubled by what I would say to those businesses is
that the idea here is to continue to realize that this is a
program that works through the States, for the most part, that
we need to help States with technical assistance in those cases
where they need it, but we also need to put the data out there
and challenge them and, in some cases, be ready to step in if
we are not met with agreement. But I wouldn't think that would
be a case back home.
Ms. Fallin. Okay.
Ms. Jackson. Thank you.
Ms. Fallin. Well, I appreciate your comments, and I guess
my comment is, especially during these challenging times, just
to enforce the law, but yet work with the States and work with
the local authorities, especially the business community. Thank
you.
Ms. Jackson. Thank you.
Mr. Oberstar. I thank the gentlewoman. We have now four
minutes remaining on this vote. We will recess and return
hopefully within 20 minutes. I know the Administrator has a
noon departure obligation, so we will try to honor that.
The Committee stands in recess.
[Recess.]
Mr. Oberstar. The Committee on Transportation and
Infrastructure will resume its sitting. When we left, the
rotation goes to the Democratic side and the Chair recognizes
Mr. Teague.
Mr. Teague. Thank you, Mr. Chairman, for hosting this
meeting and for allowing me the opportunity to ask some
questions.
Ever since being elected to Congress, there is an issue
that constituents of mine in New Mexico have brought up time
and time again. What I have found most remarkable about this
issue is that it is not just one organization or one industry
that is talking about it. I hear from a wide range of New
Mexicans representing diverse constituencies. It could be a
dairy farmer or cattle grower, an oil and gas producer, or a
developer, or someone who builds our roads, or local government
official, but they have a central concern. The issue they are
concerned with is the extent of Federal authority under the
Clean Water Act.
Many of my constituents fear that the effective State and
local regulation will be replaced by vague, all-encompassing
Federal term ``waters of the United States.'' They fear--and I
share this concern--that the legislation expanding Federal
authority under the Clean Water Act would result in unneeded
Federal jurisdiction over the work that many of our businesses
and agriculture producers do on a daily basis.
Keeping our water clean is one of our most important
responsibilities because, where I come from, there is not much
water and we need to keep what we have clean. But the
regulation needs to be smart and honor the effective roles that
States and local governments have in managing our most precious
resource.
I guess one of the questions I would like to ask is
assessing the jurisdiction of the Clean Water Act, while it may
be difficult, but the deletion of the term ``navigable'' from
the definition of waters of the United States, as proposed by
the Clean Water Restoration Act, is a blunt instrument that
could lead to an unreasonable expansion of the legislation to
waters it was never intended to apply to. Wouldn't an
alternative approach, one that perhaps leaves the definition
alone but lists the precise type of waters the Clean Water Act
would apply to, resolve all of EPA's jurisdictional problems
without creating the uncertainty deletion of the term
``navigable'' would cause?
Ms. Jackson. Thank you. I appreciate your recognition of
the jurisdictional issues associated with implementation of the
Clean Water Act right now, and I also appreciate your
suggestion and, with the Chairman, look forward to continuing
dialogue on this issue, because I know jurisdictional issues
are something that he has indicated and the Administration has
joined him in believing can only be fixed by Congress, and must
be fixed. We are actually calling on your help.
With respect to your specific question, I would enjoy a
conversation on it as well. There are certainly many different
ways to do it, but what I can tell you is that the scope of the
Supreme Court decisions have made it such that the Federal
agencies, and State agencies as well, face significant
challenges right now in implementing, permitting, and
enforcement programs because so much time and effort is spent
simply trying to determine whether or not jurisdiction can be
asserted. So recognition, I believe that we need to fix this,
is a very, very important thing.
Mr. Teague. You know, one of the questions is some things--
this was partially asked and answered earlier, but it has to do
with the jurisdiction through the Clean Water Restoration Act.
The New York Times ran an article, and in the article it said
that there are not problems with the Act's jurisdictions but,
rather, the permit violations that were enforced. So, in other
words, if jurisdiction was not taken and a permit had not been
issued, States would never have found the violation in the
first place, and I was wondering how you see is there
association between a supposed lack of enforcement and the need
for more jurisdiction?
Ms. Jackson. Enforcement, Mr. Teague, is made harder when
you are not sure whether you have jurisdiction. So we have
actually seen cases that are lost over--water quality cases
that are lost over the question of whether or not jurisdiction
had or could be established because, right now, the Supreme
Court cases, and now, increasingly, circuit court cases behind
the Supreme Court cases, make it so that nobody is quite sure
what the rules of the road are. So there certainly is an
impact.
Where I thought you were going on your question, as well,
is that we know that about a third of the U.S. population gets
some or all of their drinking water from intermittent,
ephemeral, or headwater streams, many of which are the water
bodies where jurisdiction is most in question right now.
Mr. Teague. Okay. Thank you for answering those questions.
Ms. Jackson. Thank you.
Mr. Oberstar. In further response to the question the
gentleman raised about the Supreme Court decisions, I want to
state once again the Act of 1972, the Clean Water Act, to
provide for water pollution control activities, public health
service of the Federal Security Agency and the Federal Works
Agency and for other purposes, that goes back to the origins of
the Act in 1956.
But in the 1972 Act, Section 101, declaration of goals and
policy, the objective of this Act--and you stated it in your
opening remarks--is to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters. No
distinction about it, the Nation's waters; and that is how the
Act has been administered for all these many years.
Now, Mr. LoBiondo.
Mr. LoBiondo. Thank you, Mr. Chairman, very much.
Madam Administrator, welcome. It is good to see you.
Madam Administrator, as you are aware, the EPA was recently
forced by the courts to develop a permit under the Clean Water
Act, the NPDES system, to regulate the discharge of ballast
water and other incidental discharges like bilge water and deck
wash from vessels. While we all agree that the discharges
should be subject to regulation, I am very concerned and many
of the people that I represent are very concerned that under
this system the States are adding additional and often
contradictory requirements on vessel operators that impair the
flow of commerce and undermine the economic viability of our
maritime sector.
An example of this would be, in Michigan, vessel operators
are required to treat their ballast water with chemicals. But
if you travel across the lake, you cannot discharge any ballast
treated with chemicals in Wisconsin because of Wisconsin's
regulations. And now the Coast Guard is coming out with a
separate standard for ballast water discharge and your staff
has informed us that it will be impossible for you to ensure
uniformity between the EPA standard, the Coast Guard standard,
and standards implemented by the various States.
So, in a few months we are going to have the EPA, the
United States Coast Guard, and what looks like to be about 30
States with different standards for discharge of ballast water.
It is an impossible situation for our folks to sort through
when they are transporting along our coast, the Great Lakes,
and the inland rivers.
So, Chairman Oberstar, I want to particularly thank you for
working with me and those of us who find this issue critical--
and many of them are involved in the fishing industry--and for
your commitment to solve the problem before the move the Coast
Guard bill forward. That is a tremendous help, Mr. Chairman,
and I know this is a daunting task.
But, Madam Administrator, my question to you is how would
you recommend we best regulate ballast water and other
incidental discharges to avoid the problems we have now?
Ms. Jackson. Thanks, Congressman, and thanks for your
leadership on this and so many clean water issues in New Jersey
and for the Country as a whole.
I believe that you, in your question, lay the foundation
for an answer we must come up with. States feel very strongly
that because of a lack of regulation for such a long period of
time, they were watching invasive species--which is what these
ballast water regulations are aimed at--becoming increasing
problems. Places like the Great Lakes, California, and other
great water systems see invasive species as a huge threat, so
there has been a response.
But you point out the countervailing view, which is,
nationally, it is almost impossible for any shipper now to know
what the rules of the water are as they move through national
commerce; and international adds an even greater level of
complexity because much of the Coast Guard's work, as I
understand it, is also dealing with the international community
on ballast water standards as well.
I am happy to work on this issue with you further and with
the Committee. I believe it is important to get all the players
in a room to try to come up with a set of rules of the road for
the Country as a whole that we can work on together.
Mr. Oberstar. Would the gentleman yield?
Mr. LoBiondo. Certainly.
Mr. Oberstar. If I might supplement the gentleman's
question with an approach we discussed in meetings with States,
authorities and shippers, and with EPA as a possibility of,
rather than amending the Clean Water Act on the issue of
priority or preemption, to engage the States in a compact in
which they would agree to abide by a single national standard
and engage EPA in the shaping of that compact. That could work
for both the Great Lakes and the east and west coast States. It
would still be within the ambit of the Clean Water Act. We
would not have to deal with the preemption issue and we would
achieve the goal.
Have I stated it right, Mr. LoBiondo?
Mr. LoBiondo. Yes, sir.
Mr. Oberstar. What do you think about that? Give it some
thought?
Ms. Jackson. Yes, I am happy to give it thought, Mr.
Chairman. I think it is an intriguing idea and I think it,
again, highlights the importance of having all the folks at the
table who have the ability to regulate here agree on the need
to come up with a set of rules on the road that allow business
to operate, quite frankly, to bring us the products we need and
export the products that we want to sell, but also recognize
that invasive species are increasingly a huge threat and a huge
concern, and it is hard to put that genie back in the bottle.
But I think it is an intriguing idea and I would be happy to
work with you on it.
Mr. LoBiondo. I think it would be great, although it would
take a whole bag of pixie dust to get all the States to agree
on this. I think a system like we deal with with the sewage
from vessels, where we can get together might be the one, but
you can see the dilemma. And I want to make it clear that my
vessel operators, fishing boats, and otherwise, it is not the
regulations they are upset with. You can set the standard
wherever you want to set it, but they want that to be the
standard so they know that, when they are moving from port to
port, they are not going to be put out of business and then
have a whole different set of regulations to work with; and I
don't think that is unreasonable.
So this genie is out of the bottle here. We are going to
have to somehow either figure out how to get it in the bottle
or come up with something else.
Mr. Chairman, I have all the confidence in the world that
your leadership abilities will get us to that point.
Mr. Oberstar. I am not sure about that bag of pixie dust,
though.
Mr. LoBiondo. Okay. Thank you.
Mr. Oberstar. Maybe if we get them all in one room, we can
reason together and achieve some good.
Mr. Rahall?
Mr. Rahall. Thank you, Mr. Chairman.
Administrator Jackson, I would like to ask you, just for
the record, so we can be very clear, whether you believe that
clarity and certainty is the goal of the EPA in the reviewing
of coal mining permits. There are concerns that EPA is not
providing clear cut directions, that coal operators are not
being told what requirements with which they need to comply.
There is the fear that there are no clear rules of the game by
which to seek mining permits.
Would you care to comment on those concerns and
frustrations that are out there?
Ms. Jackson. Yes, thank you, Congressman. I certainly have
heard them and I am happy to address them. Yes, I absolutely
believe that the end of the road should be clarity and
certainty in the regulations that EPA is imposing through the
Clean Water Act. You highlighted in your opening remarks the
interplay between SMCRA and the Clean Water Act, and it is
sometimes rocky as well.
On individual permits, on the permits that are currently
being reviewed, those permits have been in litigation for
literally years and years, and that is a normal outcome of what
happens when there isn't clarity in regulation up front and
when all the regulators who may have a stake and an issue are
not consulted up front on that issue. So you get sort of this
step-wise process where people apply for applications and it
seems endless, and litigation results as well. So I believe
that clarity is something that EPA owes the regulated community
and the American public in its implementation of the Clean
Water Act.
Mr. Rahall. As you are aware, some of the more ardent and
vocal opponents to what EPA is doing claim that you want to end
all coal mining. Again, I just wanted to give you a chance for
the record to clarify that.
Ms. Jackson. Yes, I am happy to state for the record and
say unequivocally that neither EPA nor I personally have any
desire to end coal mining, have any hidden agenda, any agenda
whatsoever that has to do with coal mining as an industry. I
believe that coal can be mined safely and cleanly; I believe
that it can be done in a way that minimizes impacts to water
quality; and I believe it is EPA's role and responsibility and
duty under the Clean Water Act to speak to those issues and
only those issues.
Mr. Rahall. Thank you. I appreciate the opportunity to meet
with you prior to this hearing and prior to the questioning
period, and look forward to meeting with you more in the
future.
Ms. Jackson. Absolutely, sir.
Mr. Rahall. Thank you.
Ms. Jackson. Thank you.
Mr. Oberstar. Continuing those who had not--Mr. Young--made
an opening statement.
Mr. Young. Thank you, Mr. Chairman. I am sorry I am a
little bit late.
In this legislation we are talking about water. Where does
the EPA stand and the Administration stand on the
constitutionality of navigable waters, and who has authority
over operating those waters?
Ms. Jackson. The Administration, in a letter that was
signed by the Council on Environmental Quality, myself, USDA,
Department of the Interior, and the U.S. Army Corps of
Engineers, put forth principles about the need to address the
jurisdictional uncertainty around what is and isn't a water of
the United States. The letter I think best outlines the
Administration's position.
The first principle essentially says that waters need to be
looked at broadly; that we need to look at jurisdiction broadly
over the waters of the United States. I believe it is the
second principle that says it should be a clear test, it should
not be a test that requires, as it does now, almost half of our
staff time at the Federal level just trying to determine
jurisdiction. We need to be able to get on to the business of
protecting waters as well.
Mr. Young. That is well and good, but it sounds to me like
the Administration and EPA and the rest of them are really
looking for a seizure of the authority on what is navigable and
what is not. Now, in my Constitution in the State of Alaska,
which was ratified by this Congress and by the people of
Alaska, it specifically mentions the State has control over
navigable waters and I am very concerned that there is a desire
for a Federal agency to take and start asserting use of waters
within a State that are State waters. Now, the Federal waters I
am not particularly concerned about that, but the State waters
are State waters.
Ms. Jackson. You know, we are not asking for an expansion
of jurisdiction; it is really putting the stated law back to
what it has been for 30 years. The jurisdictional issues that
we deal with now are over the state of the Clean Water Act as
it was interpreted for literally 30 years. So what we are
seeing now as a result is a huge logjam in the system, where
there is so little clarity on jurisdiction----
Mr. Young. But the legislation does not do that, and I am
suggesting, Mr. Chairman, with all due respect to the author of
this bill, before we move any legislation, it has to be
perfectly clear, especially as has been ratified by the
citizens and by this Congress when we became a State, that the
waters belong to the State. There was never any argument about
the State; it is by your agencies, you, EPA, Interior, start
interpreting how they think it should be, not as the law says.
Now, Mr. Chairman, with all due respect, this bill is not
on my wish list if that isn't clarified, because that is a
taking from a constitutional act of this Congress by agencies.
Mr. Oberstar. Would the gentleman yield?
Mr. Young. Gladly.
Mr. Oberstar. What legislation is the gentleman----
Mr. Young. The water legislation that you are proposing, I
believe.
Mr. Oberstar. Oh, that is not the subject of this hearing.
Mr. Young. Well, I am bringing it up----
Mr. Oberstar. We are not holding a hearing on that bill.
Mr. Young.--because I think she is in the seat and she is
part of it.
Mr. Oberstar. And that bill has not been introduced yet, by
the way.
Mr. Young. I understand, Mr. Chairman, but when I have a
witness--because I have a hard time getting hold of
Administration chiefs of staff, etcetera, when I ask. When I
was in the majority, there was no problem. But they have a
tendency not to answer. So I am asking this question
specifically for the reason for the State of Alaska.
Mr. Oberstar. Well, in the Supreme Court decision, SWANCC,
Justice Rehnquist clearly recognized authority of the Federal
Government over navigable waters, but the opening paragraph of
the Clean Water Act of 1972 makes it very clear that the
objective of the Act is to establish and maintain the chemical,
physical, and biological integrity of the Nation's waters. It
did not distinguish.
While there are references within the Act to navigable
waters, what the Administrator has said is the confusion
created by the SWANCC decision and Rapanos decision has caused,
both in the Bush Administration and now for this
Administration, excessive amount of time consumed in the
permitting trying to delineate the meaning of the Court's
decision.
And if you are referring to the bill that I introduced in
the previous Congress, the purpose was to establish consistency
and clarity, and to incorporate into law the previous
regulatory body by which the Act was administered, to respect
some of those concerns that you have already expressed.
Mr. Young. I thank the Chairman, but one of the things we
have is how do you define what water is. Everybody knows what
water is, but in the definition of water, is it a navigable
stream, is it a puddle, is it a swimming pool? Whatever it is.
And I am just very reluctant, when we deal with water--we have
water battles in California, water battles in Arizona, water
battles over the Colorado River, and we have water battles from
Lake Michigan; and States have to have a real part of this
program, and just not the Federal Government.
Mr. Oberstar. That is correct, and that is the purpose. And
we will have hearings further on specifically on the Clean
Water Restoration Act, as it was called in the previous
Congress. We are going to call it something else. We have heard
all these concerns and I have several adjustments to the Act
that I think the gentleman will be interested in.
Mr. Young. Well, I am always interested in what the
Chairman likes to adjust. Thank you, Mr. Chairman.
Mr. Oberstar. Ms. Hirono?
Ms. Hirono. Thank you, Mr. Chairman.
Mr. Oberstar. Administrator, if you can hold off for just a
few more minutes, there are three more Members.
Ms. Hirono. Ms. Jackson, when we took our break, I was able
to apprise you of a particular situation affecting the city and
county of Honolulu. Mainly, I was very gratified to hear you
say that when you are dealing with enforcement actions relative
to municipalities, the impact of adverse decisions has a huge
effect on ratepayers and that you want to be able to work with
the municipalities and, of course, based on science and those
conclusions that should be drawn. I was gratified to learn that
you would be sending someone to my office to talk about that
particular circumstance.
You have been asked earlier about the witness who will be
testifying right after you, and you noted that EPA would not
have jurisdiction, did not have jurisdiction in that situation
because it involved drinking water, not surface water.
Ms. Jackson. Not quite, Ms. Hirono. The jurisdiction has to
do with--we certainly have a safe drinking water act, which
governs water safety of drinking water, and there is some
amount of wellhead protection there. As I understand it--and I
am cognizant that the witness is sitting right behind me, so
she knows her situation better than me. But as I understand it,
we would not have been able to assert jurisdiction over the
application of the manure that eventually ran off and
contaminated the well, as I understand the situation.
Ms. Hirono. So you actually would have had jurisdiction
over some elements of that whole situation.
Ms. Jackson. We certainly have jurisdiction over any manure
that enters surface water. I don't know, I am assuming this
might be a private well, so whether or not we have jurisdiction
over that private well, I would say no.
Ms. Hirono. I think that is what gets so confusing for our
people who are impacted by these kinds of actions. It is really
hard for a normal person, regular person to figure out who to
contact. So if this is an area that needs to also be clarified,
perhaps you can look at it. And knowing that the water doesn't
just stay in one place, that it just goes all over, right? And
I don't know how you draw the line as to who has jurisdiction
when. So perhaps that is something you can look at, because the
circumstances described are really outrageous.
Thank you.
Ms. Jackson. I am happy to do that. Thank you.
Ms. Hirono. Thank you, Mr. Chair.
Mr. Kagen. [Presiding] Thank you, Ms. Hirono.
The Chair recognizes Mrs. Capito.
Mrs. Capito. Yes.
Madam Administrator, thank you for being here. I would like
to have a one-on-one conversation because I am sure you could
tell from my opening statement I have a lot of concerns about
what is going on with EPA in my State and the coal mining
permits, so I appreciate that if that could occur.
I have just been informed I get one question, so, in
response to my colleague from West Virginia on the clarity
issue and the definite steps that need to be taken, this is
where a lot of the frustration is coming from our constituents,
is the delaying, the inability to really see where not so much
the end is, but how to get to the end. Whether it is an up or
down, yes or no, it is this maybe land that we are living in
that is extremely frustrating and is threatening a lot of jobs
in West Virginia.
So I guess what I would ask you--and in your statement
here, when you talk about transparency and accountability, you
state, quite rightly so, that it is your responsibility to tell
it like it is. But even I have had meetings to try to figure
out where this process is going and how it actually is going to
be resolved in the end.
My understanding is that, of the 79 permits, only 4 have
gone to the Corps and those would be under a 60-day time. So
that leaves another 75. Where are they? When could I tell my
constituents that they will have an answer on that? And then
once the Corps makes their decision after the EPA has had a
chance to weigh in on these decisions, then it is my
understanding that the EPA can then come back in and render
another decision. So there again it is more uncertainty and
lack of clarity as to what the end is.
So I guess I would ask you would the EPA seek to suspend or
revoke a permit further down the road? Can you go back to the
former permits? And does this process really lend itself to the
clarity that you have stated in your mission under your
administrator-ship want to see at the EPA?
Ms. Jackson. Thank you.
Mrs. Capito. And, again, I would emphasize a lot of
economic environmental issues are so intertwined in our State,
as in many of these States, as you have heard.
Ms. Jackson. Yes, thank you, and I am happy to meet with
you on this issue separately, since time is limited. In
response to your question, I will say this. As I mentioned
earlier, these 79 permits have been held up for years by
litigation. It is also no secret that EPA had significant staff
level concerns that were raised with the Department of the
Interior when the stream buffer rule, the rule that came out in
2008, that is, ostensibly authorizes some of this work and is
interpreted a long time by the State of West Virginia to allow
large amounts of these valley fills. There has been scientific
concern about it for quite some time.
So we found ourselves, as I took over at EPA, at a
situation where we had 79 permits that have been held up by
litigation, some that EPA had never reviewed. These are not re-
reviewed permits, they had not been reviewed because of the
litigation. All work had been stopped. And what we committed to
was a process that we would outline the work, as much as
possible, with the Corps of Engineers to work through those 79.
Now, the 75 or so that are remaining are with the Corps of
Engineers. As they notify us, they begin a 60-day clock for
review of those permits----
Mrs. Capito. They are not at the Corps yet.
Ms. Jackson. Well, they are not physically there.
Mrs. Capito. They are not on the 60-day clock yet.
Ms. Jackson. The Corps starts the 60-day clock under the
Memorandum of Understanding when they initiate review of these
projects. It was EPA's job to determine which of the projects
it wanted to have enhanced review on. We have done that and we
did it after a 15-day period we went final on that list. So now
as the Corps opens these permits for review and there begins
the work of working with the permit applicants to try to
address whether or not they have minimized valley fill and
potential water impacts.
What we are seeing with the science here is that, as these
watersheds have more and more valley fill in them, frankly, we
see water quality impacts, and it starts at the ecosystem level
with conductivity increases that indicate selenium and other
increases, and we believe that over time that is going to be a
larger problem, not a smaller one. So what really has to happen
is rolling up the sleeves to minimize in these instances.
Mr. Kagen. Meaning no disrespect, the gentlewoman's time
has expired.
The Chair recognizes Mr. Hare for a single question to move
things along.
Mr. Hare. Thank you, Mr. Chairman.
Welcome, Ms. Jackson. I just want to say I think the
President did a wonderful job selecting you.
I know you have to leave, so maybe you can just even send
the answer to my office so you can get out of here. But you
said that EPA is developing innovative strategies that will
identify animal feeding operations that are violating discharge
requirements and present a significant threat to water quality.
I was wondering you or your office might be able to elaborate
on these identification strategies that you are developing.
Ms. Jackson. I am happy to send information over. Cynthia
Giles is right here. And I didn't introduce Pete Silva, so you
give me an excuse to do that. He runs our water program.
Cynthia runs our enforcement program.
We are, right now, collaborating to try to identify ways to
really look for large sources, and those concentrated animal
feeding operations that either inadvertently or by practice are
not getting permits, or get them and then violate them, are
real concerns for water quality. So we would be interested in
working with you if there are ideas on how to find the worst--
--
Mr. Hare. That would be wonderful. Thank you very much and
thank you for coming.
Ms. Jackson. Thank you.
Mr. Kagen. Thank you.
The Chair recognizes our gentleman from down south, Mr.
Taylor.
Mr. Taylor. Thank you, Mr. Chairman.
Ms. Jackson, thank you for sticking around longer than you
were supposed to. Mine is a little bit different. As you know,
the President is touring the Gulf Coast today. His schedule did
not permit him to go to Mississippi, which is where the storm
hit; Louisiana got the flood. One of the things that has
happened since the storm is communities that, prior to the
storm, had taken out loans for water and sewer based on the
population at that time have had, in many instances, 40 percent
population reductions from people who lost their homes and have
not returned.
We have made Ms. Woodcow, who is the Gulf Coast Recovery
person, aware of this problem and asked for some, as best as
you can, even loan restructuring or loan help for those
communities that are down 40 percent through no fault of their
own four years after the storm. We are going to send you some
of that information today and I would ask the folks in your
Department--I would have told this to the President had he
visited Mississippi today, but I am going to ask the folks in
your Department to take a look at that and see what we can do
to help those communities, again, through no fault of them own
with 40 percent fewer people than they had on August 28th of
2005 to help pay back those loans.
Ms. Jackson. Okay, thank you, sir. I will look for that
information and I am happy to discuss it with you.
Mr. Kagen. Administrator Jackson, thank you for appearing
here. You are now dismissed and we will now call our next panel
of witnesses, if they would please move to the table.
We will be hearing from Judy Treml from Luxemburg,
Wisconsin, Dennis Kavanaugh, who is a Representative of the
Sandy Hook Waterman's Alliance; and Dr. Patricia Butterfield,
our nurse and Dean and Professor, College of Nursing,
Washington State University.
The Chair is pleased to recognize Ms. Treml from Luxemburg,
Wisconsin, a tremendous community of caring people. Thank you
for coming here to Washington to give us your story.
TESTIMONY OF JUDY TREML, LUXEMBURG, WISCONSIN; DENNIS
KAVANAUGH, REPRESENTATIVE, SANDY HOOK WATERMAN'S ALLIANCE; DR.
PATRICIA BUTTERFIELD, PH.D., R.N., DEAN AND PROFESSOR,
WASHINGTON STATE UNIVERSITY, TESTIFYING ON BEHALF OF AMERICAN
NURSES ASSOCIATION
Ms. Treml. Thanks for having me. My name is Judy Treml. I
am here representing myself, my husband, Scott, and my three
daughters, Kaitlyn, Emily, and Samantha. I am also speaking on
behalf of many other families who find themselves facing the
same potentially life-threatening effects from exposure to
contaminated water in northeast Wisconsin.
I brought today--actually, I can keep this. I brought today
some water samples--I am more of a presentation kind of
person--for your viewing. If you look at these three bottles of
water, two of them are polluted with E. coli, one of them is
not. I present this to my local legislators, my State, and all
of them would pick this bottle as the clean water. If I asked
you to pick which bottle you think is the clean water of the
three, which one would you pick? If you pick this one and you
drank this water or gave it to your infant daughter, you would
be poisoning her with E. coli. This is the new safe drinking
water flowing into my house after the DNR made recommendations
to the depth of my well water to be 400 feet. I would not give
my children a bath in this water; I would not drink this water.
This water has to be filtered with three different filtering
systems, to the tune of about $6,000.
Like I was saying, my six-month-old daughter was poisoned.
We went to the doctor, we found out that in the event that this
illness would turn bad, the outcome for her would be death. To
me, that is unconscionable. I had a safe water test on February
4th, 2004, and by March 2nd, in a State-run lab test I had
measurable counts of E. coli at 2800 parts per milliliter, that
is, 1800 parts per milliliter more than what it takes to close
a public beach in Wisconsin and near our home.
Right now there are no laws protecting groundwater in
Wisconsin or anywhere. I believe it is EPA's duty to install
new laws that protect groundwater to address groundwater
specifically. We all need groundwater to survive. It is
unconscionable to me, as a mother and as a taxpayer, to see all
the laws and regulations to protect our lakes, streams, fish,
and wildlife, and absolutely no groundwater protection to
protect people. Does anybody here see what is wrong with this
picture of protecting fish and not children? Not that the
environment isn't important, but does no one here see the
problem that I see when our Federal laws protect fish and not
people?
I am also appalled by my State's mismanagement of Federal
funding for enforcing the existing clean water rule. That may
be neither here nor there to Wisconsin or people here in
Washington, but when parents have to call a stay-at-home mom
from Luxemburg, Wisconsin to help remedy a polluted well that
is sickening their children, something needs to be done and
these parents deserve better. We all deserve better.
What I am asking for from this Committee and from the EPA,
this Government, essentially, is protection from groundwater
and surface water pollution from these tolerated practices.
I am a hobby smoker. I am not allowed to smoke this in this
building. Why? Because this Government and our State,
Wisconsin, impose smoking bans in public places and in
restaurant and workplaces and in these Federal buildings. Yet,
there are absolutely no laws to protect my groundwater from
pollution from another source. You all have protected
yourselves from the air pollution that secondhand smoke causes;
yet, nobody seems to think that when somebody pollutes somebody
else's well, that there needs to be any kind of law against
that.
Please give us the same protection you gave yourselves from
the secondhand smoke and create new regulations for the large-
scale farming operations that pollute our groundwater, sicken
our families, and kill our fish. And please don't force us to
have to wait for the tragedy to happen as what happened with
the E. coli contaminated spinach a few years back. People had
to die from that before anybody really paid attention. Just as
it would be illegal for me to light this cigarette and force
you to breathe in my smoke, it should be just as illegal for
someone to poison my groundwater supply.
Thank you.
Mr. Kagen. Thank you, Judy, for your story and thank you
for your written testimony as well.
We now call on Mr. Kavanaugh.
Mr. Kavanaugh. Thank you for the opportunity for to let me
come down and address the Committee.
The Sandy Hook Waterman's Alliance was formed to promote
and protect commercial fishing in Northern Monmouth County, New
Jersey. Currently, the most successful fishery we have now are
shell fish, mainly mercenaria mercenaria, which are hard clams.
Unfortunately, all of our available range is pollute. All of
the Raritan Bay, Sandy Hook Bay, Navesink and Shrewsbury Rivers
are under some form of harvest restriction. The current harvest
uses depuration, which is a process where they submerge clams
for 48 hours in radiated water. Unfortunately, or fortunately,
we have an $8 million payroll, but we lose 40 to 60 percent of
that due to handling and regulations.
Shell fish are a good indicator of water quality because a
significant amount of the catch is consumed raw, which leads to
a number of health issues if not handled correctly. An
indicator of water quality is fecal count, measured in parts
per million. To dip a child in a fecal count of about 100 parts
per million is a good target. Shellfish require 15 parts per
million to be consumed raw. Aiming for shell fish would ensure
good swimming quality for the children.
Our enemies in Monmouth County are runoff and poor
sanitation management. These are the same problems that killed
a billion dollar oyster industry around the turn of the
century. Without an aquaculture option, prohibited by water
quality, the industry has been downgraded to working poor
without a social network for support.
Our first offender that we have, Monmouth Race Track, has a
history of 15 years of allowing horse waste to enter the
Shrewsbury River. This summer, a plan to contain the runoff was
suggested by the track and has a completion date of 2012. The
reason for the length of this is construction is not to
conflict with track operations. 2009's improvements were to put
gutters on the horse sheds. Funding has yet to be approved for
any of these improvements. Monmouth Track is owned and operated
by the Sports and Exposition Authority, a.k.a., the State of
New Jersey. The worst polluter in Monmouth County is the State
of New Jersey.
Our second offender is the municipality of Colts Neck. This
municipality has single-handedly defeated efforts to fund the
Navesink River Water Shed Project. In March of 2007, Colts
Neck's response for not participating and killing the funds was
that their effort to control groundwater was better than what
the county could come up with. The only problem was the report
that came out in February 2008, done by the State, found human
feces in local streams of Colts Neck. What made this
particularly upsetting was that the site was 25 yards from
Monmouth County's drinking supply, Swimming River Reservoir. It
seems that Colts Neck surrounds the reservoir and all of Colts
Neck is served by septic waste systems.
Our last offender is the borough of Red Bank. An extensive
study was done in the same report in February of 2008 by the
State of New Jersey because of a downgrade in water quality.
Red Bank's ground system is a colander with human, animal, and
multiple antibiotic sources acknowledged. Sadly, the same
report refers to discoveries of non-point, which means no
accountability. This discussion is made easier because all
these documents have Lisa Jackson's name on them. She is
intimately familiar with all the problems that we have in
Monmouth County.
Groundwater pollution is based on economics. It is cheaper
not to comply and externalize the responsibility and expense
downstream. Over the past three generations, government has
failed to slow the assault on New Jersey's coastal resources.
We can defend our own interests given the right tools. The
change will be expensive, dramatic, and correct.
I would like to leave you with two thoughts. I am running
out of time. All the offenses fall under the shadow of the EPA.
Every summer, the Garden State Parkway, a main artery in New
Jersey, is locked up with families going south for the summer.
What happens to the kids that can't get on that artery? Clean
water is a civil right that begins with permits issued by the
EPA.
Secondly, a substantial amount of racketeering, fraud, and
tax evasion is sucking the life out of my industry. My pleas to
three governors, three attorneys general, one inspector
general, one Federal prosecutor, and two congressman have gone
unanswered. Is there any chance one of you gentleman could
place a call for me for some Federal help?
Thank you.
Mr. Kagen. Thank you, Mr. Kavanaugh.
The Chair recognizes now Nurse Patricia Butterfield.
Ms. Butterfield. Thank you.
Chairman Oberstar, Subcommittee Chair Johnson, and other
distinguished Members of the Committee, it is a privilege to
speak to you today on behalf of the American Nurses Association
and the Washington State Nurses Association to discuss
regulatory and transparency issues relating to the Clean Water
Act.
As you know, the ANA is the only professional organization
representing the interests of the Nation's 2.9 million
registered nurses. The ANA recognizes the fundamental link
between our environment and our Nation's health, and I am
honored to discuss that link. As a public health nurse with
expertise in environmental health, I am here to discuss the
research we have conducted in the low-income homes of rural
residents from Montana and Washington State.
As you know, the Clean Water Act addresses surface water
and coastal areas. Surface waters can contaminate drinking
water sources in a variety of ways, including agricultural
runoff, combined sewage overflow, and discharge of mining and
industrial waste. In this context, I will discuss our research.
Our study involved collecting biological and chemical data
from the homes of more than 400 low-income rural children. Our
research is funded by the National Institute of Nursing
Research at NIH. Many of the families that we study live out in
the country not by choice, but by necessity. They seek the
least expensive housing available, a mobile home or a cabin
poorly equipped for Montana's cold winters.
Although we test for many contaminants, the most common
reason that families sign up for our study is to learn about
their water. Families tell us they want to know about their
water. They cannot afford testing on their own and they seem
willing to put up with our research team in order to find the
answers that they want. Compared with every other environmental
issue from radon to lead, mothers consistently tell us that
their top priority is to know about their water.
As you can imagine, our testing yields a variety of
results. Many families receive results that their water
contains no contaminants above threshold levels. This is very
good news. However, 29 percent of the homes that we test test
positive for at least one risk; 17 percent of the homes tested
positive for chloroforms; 3 percent for E. coli; 6 percent
exceeded the arsenic threshold; and 3 percent exceeded the
nitrate threshold.
One family we worked with had E. coli in their well. In
such cases, we typically walk the family through disinfecting
their well by adding bleach, letting it sit, and then flushing
the bleach from the well and plumbing. After this well had been
disinfected, we retested it and E. coli was found again. We had
the family repeat the process and we found E. coli a third
time. No matter what guidance we gave the family, their well
remained contaminated. At this point we ran out of inexpensive
options. We recommended that the family install a UV
disinfection system or switch the children to bottled water.
There was simply no other low-cost or no-cost solutions that we
could provide.
The tests we conduct don't differentiate between point and
non-source point pollution, but for a mother it doesn't make
any difference. Whether surface water source is from mine
waste, a local feed lot, or agricultural runoff, it makes
little difference to the mother. She only knows that yesterday
she thought that giving her child a glass of water was a
healthy action. Today she is not so sure.
One thing we have learned is that families want their
government to look out for them. They want to know that surface
water contaminants being dumped into the watershed, either
intentionally or inadvertently, are being monitored. They want
to know that those that are doing the dumping are being held
accountable because when we fail to hold the polluters
accountable, we shift the cost of healthy water from the
polluter to the family. When a well becomes contaminated and a
family begins to purchase bottled water, that family incurs a
very real cost, and the families we study can ill afford such
costs.
The simple truth is that, despite our recommendations, the
families who find out their water is at risk almost always turn
to bottled water. Even when we recommend other low-tech
solutions, families rarely have the time, money, or expertise
to look at other alternatives. When families turn to bottled
water, they increase their own cost, as well as the Nation's
cumulative burden of plastic bottles.
As a scientist, as a nurse, and as a citizen, I want to
know that the EPA and their State designates have the resources
to enforce the Clean Water Act. I want to know that the more
than one million people who are immunosuppressed and at very
real risk of dying from water-borne disease are protected. It
is important to me to know that intentional polluters who seek
to profit by poisoning our Nation's coastal areas are
prosecuted to the full extent of the law, because, in the end,
we see too many parents who believe, no matter how egregious or
how deliberate the actions of polluters are, the voices of
citizens will not be heard.
I thank you for taking action that recommits our Government
to the Clean Water Act and provides our agencies with the
resources they need to act proactively on behalf of public
health. Trust can be restored by committing the requisite
resources to the protection of our surface waters. Our citizens
and your constituents deserve nothing less. Thank you.
Mr. Kagen. Thank you, Ms. Butterfield. Appreciate all three
of you being here.
I will turn to Gene Taylor and ask if you have any
questions at this moment, Mr. Taylor.
Mr. Taylor. No.
Mr. Kagen. Mr. Hare?
Mr. Hare. Thank you.
Ms. Treml, just a couple questions. First of all, how did
you find out this was in your--this is well water?
Ms. Treml. Yes.
Mr. Hare. How did you come to find out that you had E. coli
in your well?
Ms. Treml. On a Sunday. It was February 28th. It was a
Sunday morning. Our neighbor came over. She lives just
adjacent; her property adjoins the field that was spread 80,000
gallons of liquid manure in 18 inches of snow in 40 degree
weather. The manure was running across her front lawn. She came
over crying because her well water was black; it looked like
the manure that was being spread. And she was selling her home
and you can't sell a home in Wisconsin with a faulty well.
And my husband had been talking to the DNR up until this
point when he was spreading the manure and it was running off,
and they were doing nothing about it. He actually took video of
it and DNR didn't have an interest in it. So he took the water
and he says to her, well, I am going to take this in for you
and certainly they will be interested in this. He did that on
Monday and there was no interest in it; they told us to call
someone else. One of the employees, Charles Rehoben, from the
northeast region, actually told my husband to pick up a phone
book and call someone else. And when my husband asked who to
call, he said, just open it and find someone. He gave us
nothing.
So my husband came home from work and told me what happened
with our neighbor's well, and I was preparing dinner that night
and I was washing some food off and I flipped the switch of my
kitchen faucet and out comes brown cow manure smelling water,
literally. I turned to my husband and he said--I said you need
to call the DNR; they need to do something about this, that is
his manure over there. We didn't have cows. We had a septic
system that had just human waste in it. We didn't own any cows
that we spread manure on our fields. We live on a farm. And my
husband, just exasperated, told me, Judy, they aren't going to
do anything. So I ended up calling the media and the media was
interested because you could physically see--this is our
water--chunks of manure coming out into my kitchen sink.
This was our water. This is what my water looked like the
night before when I gave my daughter a bath. What I learned
subsequently through all of the research I did when she was
sick, my pediatrician said this was grossly contaminated with
manure, E. coli, when I gave her a bath. I couldn't tell; it
didn't look bad, it didn't smell bad. It looked perfectly fine.
She was six months old. You lay a baby in the water. What do
they do in the bath? They suck on a wash rag. That is how she
got exposed to the contaminated water.
Mr. Hare. Well, I have to tell you, I don't know, whatever
it takes to get this thing fixed, we have to fix it. That is
just absolutely----
Ms. Treml. Sadly, this happens to about 100 families a year
in Mr. Kagen's district. He is ground zero, where his office is
in Brown County, Kewaunee County. There is about 100 families a
year and, like I said, they have no one to turn to in the
government, no one. We are in a black hole of regulation; there
is no regulation for this kind of----
Mr. Hare. Well, you may be in a black hole right now, but
we are going to fix that. I mean, we have to do that. I cannot
imagine turning on your faucet and having manure coming out. It
is almost----
Ms. Treml. We have tons of video if you want to see it.
Mr. Hare. No, I will pass on the video; I will take your
word for it. But we have to fix that.
Doctor, you bring up a good point. When people go to
bottled water, they have the plastic bottles, so, A, you have
the expense of output for people who can't afford it. They
somehow have to try to afford it. And then, ultimately,
environmentally, we are creating an additional problem on top
of what we already have. And these are hitting families that
just don't have anyplace else where to go.
Ms. Butterfield. I agree, Congressman Hare. That makes a
lot of sense and that is what we see all the time. We work with
families under 250 percent poverty. None of them have the
resources to make this type of switch.
Mr. Hare. Then, lastly, Mr. Kavanaugh, if you need somebody
to make a phone call, I will give you my card before you leave.
I don't know if it will----
Mr. Kavanaugh. I am sorry, I missed that.
Mr. Hare. I said if you need somebody to make a call--I am
from Illinois, not New Jersey, but I still have a big mouth
anyway, so I would be happy to make a call for you.
Mr. Kavanaugh. I sure could use some help.
Mr. Hare. Well, I will do the best I can.
I just want to say to all of you I appreciate your being
here. This is my first tour of duty on this Committee and I am
glad I am here today. When you hear about these things, I was
sitting here as you were testifying, just kind of shaking my
head, trying to get my mind around what you and your family and
your kids are doing, and this has absolutely got to get fixed,
and it has to get fixed now. This is nothing something that can
be delayed. So we have to move and move very quickly, and get
it done right.
And for those people who wouldn't pay attention to your
husband, I think it is shameful. They have a responsibility to
protect you and your family. So we will try to get this thing
done quickly and get it right for you and your family. But I
cannot believe that a family would have to put up with that.
Thank you, Mr. Chairman.
Mr. Kagen. Thank you for your questions, Mr. Hare. And just
to set the record straight, the State of Wisconsin, DNR did
what they were supposed to do in following their rules, but
their rules weren't sufficient to cover the harm. I would quote
one of my favorite justices of the Supreme Court, Hugo Black,
who, during one of his rulings--it may have been a bar fight, I
am not sure--where he said, ``Sir, your freedom to swing ends
where the other person's chin begins.'' So when it comes to a
source of pollution, their freedom to pollute our air, our
water, and our soil ends where the other person's environment
begins, be it internal or external.
My question really has more to do with all three of you
come from different regions of the United States and you have a
common problem, and that problem you feel, if I hear you
correctly, is that our groundwater needs adequate protection.
Is that correct?
Ms. Treml. That is correct.
Mr. Kagen. And yet there is an economic cost to this
because once the groundwater has become polluted, once an
aquifer has become polluted or collapses altogether, it is
very, very expensive, if not impossible, to bring it back to
life, so to speak. So I would like to hear your comments first,
Mr. Kavanaugh, about how you think you can produce cleaner,
healthier shell fish.
Mr. Kavanaugh. Pretty simple: you have to put some teeth in
the watchdog. In my particular case, we already got bounced out
of Federal court once. In additional documentation that I
brought in as part of my testimony, you will find out that a
very expensive study was done in Red Bank. Nowhere did they use
the word point source. I mean, you have to give me--I will
fight the fight. We will defend our families and our way of
life.
But you have to give me a law I can fight with. When I am
getting thrown out of Federal court--and nobody in the State is
paying any attention to me. I only have the Federal arena. And
I am willing to go to the Federal arena. We are willing to
defend our shores and our families, but if I have no standing
because it is a colander and you have to say--if everything is
leaking sewage and antibodies and you say, well, it is not a
point source, then I have to go home.
Mr. Kagen. Thank you, Mr. Kavanaugh.
Ms. Butterfield, do you feel that the EPA has what it needs
now in terms of the legislative authority to oversee and
enforce the actions that are taking place in Washington and
Montana?
Ms. Butterfield. Congressman Kagen, you spoke about the
importance of prevention and that, once water is contaminated,
it is extremely expensive to uncontaminate that water. That is
why enforcement and resources for enforcement are key, so that
when I drive on a highway and I see a highway construction
project where the sediment and fumes and diesel are
contaminating surface waters that will affect the water systems
of people downstream, that people know that enforcement will be
effective.
The second thing would be stronger connections between
local health departments about information and public awareness
so that people can make the connections between water
contamination and public health as an issue, and strengthening
that so that communities can work together. Thank you.
Mr. Kagen. Ms. Treml, any remarks in that regard?
Ms. Treml. The only remark I have is just a clarification
to Ms. Jackson. There was a question posed to her, and to you
as well, that, in our case, the Clean Water Act was clearly
violated when the manure ran off over the neighbor's property
and into School Creek, which is a navigable waterway, it is a
waters of the State. Our Federal lawsuit got seated in Federal
court in April of 2004 and it was only three months later the
State of Wisconsin decided to file its own lawsuit for
violations of the Clean Water Act.
So we did have the rules in place, so to speak, to have the
DNR and the State of Wisconsin act on our water contamination
claim--not our private drinking water claim--but what we found
is that the State of Wisconsin became our adversaries versus
our allies. When we were going toe-to-toe with DNR employees in
depositions, when they were becoming a hindrance to our case
rather than a help, that was when we realized we had a problem
in Wisconsin and that other families in Wisconsin had a real
big problem.
Mr. Kagen. Well, thank you all very much and thank you
again for appearing before the Committee. You have the full
support of a majority of the Members of this Committee in
taking actions to try and prevent further point source and non-
point source pollutions. Thank you very much and you are free
to go.
We have three votes.
If panel three would get mentally prepared to take your
chairs. That would be Anu Mittal, Wade Najjum, Steven Brown,
Tom Porta, John Rumpler, Dr. Jay Shimshack, and Eric Schaeffer.
We will adjourn for a period of time until we vote and come
back.
[Recess.]
Mr. Oberstar. [Presiding] The Committee will resume its
sitting following the series of votes, and we will begin with
panel three. I believe it was already--counsel, was the panel
already called?
Voice. No, they were not.
Mr. Oberstar. Oh, then I call the panel. We have Ms. Anu
Mittal. That is quite an interesting name. It is of Indian
origin and at least your namesake----
Ms. Mittal. Is a very rich man, yes.
Mr. Oberstar.--bought a steel company and is building a
plant in my district.
Ms. Mittal. Really?
Mr. Oberstar. Yes. They also have an iron ore mining
operation.
Ms. Mittal. Every one of my family members has tried to
find some relationship with him but has not been able to.
Mr. Oberstar. It hasn't worked yet. Oh well, thank you for
being with us today.
Mr. Wade Najjum of Office of Inspector General at EPA; Mr.
R. Steven Brown, Executive Director for Environmental Council
of the States; Tom Porta, Deputy Administrator for the Nevada
Division of Environmental Protection for ASIWPCA; Mr. John
Rumpler, Senior Attorney for Environment America; Dr. Jay
Shimshack, Assistant Professor of Economics at Tulane and
Visiting Scholar at Erb Institute for the University of
Michigan; and Mr. Eric Schaeffer, Executive Director for the
Environmental Integrity Project.
Welcome. Ms. Mittal, we will begin with you. Put your
microphone on so we can hear every word of wisdom.
TESTIMONY OF ANU K. MITTAL, DIRECTOR, NATIONAL RESOURCES AND
ENVIRONMENT TEAM, GOVERNMENT ACCOUNTABILITY OFFICE; WADE T.
NAJJUM, ASSISTANT INSPECTOR GENERAL, OFFICE OF INSPECTOR
GENERAL, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; R.
STEVEN BROWN, EXECUTIVE DIRECTOR, ENVIRONMENTAL COUNCIL OF THE
STATES; TOM PORTA, DEPUTY ADMINISTRATOR, NEVADA DIVISION OF
ENVIRONMENTAL PROTECTION, TESTIFYING ON BEHALF OF ASSOCIATION
OF STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS;
JOHN RUMPLER, SENIOR ATTORNEY, ENVIRONMENT AMERICA; DR. JAY P.
SHIMSHACK, ASSISTANT PROFESSOR OF ECONOMICS, TULANE UNIVERSITY,
AND VISITING SCHOLAR, ERB INSTITUTE, UNIVERSITY OF MICHIGAN;
AND ERIC SCHAEFFER, EXECUTIVE DIRECTOR, ENVIRONMENTAL INTEGRITY
PROJECT
Ms. Mittal. Thank you, Mr. Chairman and Members of the
Committee. We are pleased to be here today to participate in
your hearing on the 37th anniversary of the Clean Water Act.
Since the Act was passed, GAO has been asked by Congress
several times to monitor EPA's enforcement efforts under the
Act, and my testimony today is based on several reports that we
completed in the last nine years which highlight some
longstanding issues with EPA's efforts. These include
inconsistencies in regional enforcement activities, the impact
of inadequate resource and workforce planning, efforts to
improve national priority planning and oversight of State
programs, and limitations in some measures of program
effectiveness.
With regard to inconsistencies in EPA's enforcement
programs, while we recognize that some variation is necessary
to take into account local conditions and concerns, core
enforcement requirements must be consistently implemented and
similar violations should be met with similar enforcement
responses.
However, in 2000, we found significant variations in the
regions and this had led to inconsistent enforcement and more
in-depth reviews in some regions than in others. Variations
that we identified included inspection coverage, the number and
type of actions taken, the size of the penalties assessed, and
the criteria used to determine penalties. Several factors
contributed to these variations, including differences in State
laws and authorities, variations in resources, and incomplete
and inadequate enforcement data.
In 2007, when we again examined EPA's oversight of State
programs, we found that by implementing the State review
framework EPA had, for the first time, the potential of
providing consistent oversight of the State programs. By using
this framework, EPA had identified several weaknesses in the
State programs that were consistent with our findings of 2000,
but we concluded that until EPA addressed these weaknesses and
their root causes, it would not be able to determine whether
the States were performing timely and appropriate enforcement,
and whether penalties were being applied fairly and
consistently.
With regard to the adequacy of enforcement resources, our
past work has recognized that EPA's and the State's
responsibilities and workload under the Clean Water Act have
increased significantly and that EPA's work has shifted from
direct implementation to oversight of State programs. Our work
has also shown that while overall funding for enforcement has
increased, these increases have not kept pace with inflation or
growth in responsibilities.
In this environment of constrained resources, what is more
troubling is that EPA continues to lack a systematic data-
driven process for budgeting and allocating resources. We have
repeatedly found that EPA makes incremental adjustments and
relies on historical precedent when making resource
allocations, instead of using a bottom-up data-driven approach.
The most significant obstacle to comprehensive reform in this
area is the agency's lack of complete and reliable workload
data. As long as EPA lacks these data, it will be hampered in
its ability to target limited resources to the areas of
greatest risk.
In contrast, we have found that EPA has made substantial
progress in improving priority setting and enforcement planning
with the States. Specifically, EPA's partnership system for
those States that demonstrate strong environmental performance
has provided States with greater flexibility and autonomy in
planning and operating their programs. This partnership system
has fostered a more cooperative relationship with the States
and has helped with joint planning and resource allocation.
Finally, in 2008, we reviewed three key measures that EPA
uses to assess and report on the effectiveness of its
enforcement programs. Specifically, we reviewed EPA's measures
for assessed penalties, injunctive relief, and pollution
reduction. Our review found a number of shortcomings in how EPA
calculates and reports information on these measures, which may
result in an inaccurate assessment of the program.
In conclusion, over the past decade, we have identified and
recommended a number of actions that EPA can take to strengthen
its enforcement program under the Clean Water Act. However,
EPA's implementation of our recommendations has been uneven
and, as a result, many of the issues that we have identified in
the past remain unaddressed even today. We continue to believe
that the agency needs comprehensive, accurate, and reliable
data; better resource allocation processes; and accurate
performance measures to help ensure that it is implementing the
Clean Water Act consistently across the Country and that like
violations are being addressed in the same manner.
Mr. Chairman, this concludes my prepared statement. I would
be happy to respond to any questions.
Mr. Oberstar. Thank you very much for your testimony and
for the splendid work that GAO did on its evaluation of the
Clean Water Act enforcement.
Now, Mr. Najjum.
Mr. Najjum. Thank you, Mr. Chairman. Good afternoon, Mr.
Chairman. I am pleased to be here today marking the 37th
anniversary of the Clean Water Act to talk about the OIG's work
that bears on EPA's ability to manage, oversee, and enforce
environmental laws, including clean water.
Over the years, the OIG has issued many reports that
pertain to aspects of the Clean Water Act, ranging from EPA's
oversight of major facilities and long-term significant
noncompliance, efforts to clean up the Chesapeake Bay and the
Great Lakes, and delays in establishing water quality standards
for nutrients. We are currently processing a report that will
be released in the coming days on Wetlands Section 404
enforcement. In these individual reports, we identified
problems and made recommendations for corrective actions
specific to the scopes of those reviews. Many of these reports
are summarized in my full statement. While the Agency does not
always agree with our assessments, we believe we have a good
working relationship and that good faith efforts are made to
resolve and correct the issues we report.
We also have a significant body of work addressing
enforcement and enforcement-related issues in other programs at
EPA. For example, we just issued a report on high priority
violations, a Clean Air Act enforcement process that is
comparable to significant noncompliance of the Clean Water Act.
Our work includes evaluating the process or basis for
establishing the standards for enforcement. We have also
evaluated aspects of the overall management of enforcement,
like our report on EPA's Office of Enforcement and Compliance
Assurance strategic planning for priority enforcement areas.
I mention these other areas because we believe that there
are common roots to many of the problems we identify in each of
the media. We believe that some of the roots of these issues
are beyond the Agency's ability to fix without assistance. We
call these management challenges. We define management
challenges as a lack of capability derived from internal, self-
imposed constraints or, more likely, externally imposed
constraints that prevent an organization from reacting
effectively to a changing environment. Each year we update and
revise our list. For fiscal year 2009, we have ten.
I would like to talk about one management challenge in
particular that we believe directly impacts EPA's effectiveness
regardless of the media or statute organization and
infrastructure. Many of the other challenges also impact Clean
Water Act enforcement, but organization is the major common
denominator. We have repeatedly reported that EPA regions do
not ensure consistent enforcement of environmental laws. The
usual causes addressed are related to a lack of national
guidance establishing an EPA position, lack of national
oversight over the regions, and a lack of regional oversight
over delegations to the States. Also, inconsistent data
collected from the States and others as interpreted by ten
regions adds to the problem. The OIG addresses these issues
within the scope of our work, but underlying the Agency's
problems is an organization not designed to do its mission.
The Agency's current strategic plan calls for having the
right people in the right place at the right time. However,
since EPA's formation in 1970, a comprehensive study has not
been completed to analyze EPA's mission, organization, and the
related number and location of employees needed to most
effectively carry out EPA's mission at least cost. This affects
all functions, not just clean water.
To quote from the 1970 memo creating an organization for
environmental protection: ``The functions assigned to EPA are
not the only determinants of its effectiveness. Performance
will be helped or hindered by the way the programs and
functions which make up the EPA are structured within the new
organization.'' We also note that it specifically rejected
trying to achieve EPA's objectives by organizing around media
such as air, water, and land. According to EPA's history, there
was a three-phased plan to streamline and consolidate
functionally for efficiency. The Agency never implemented the
third phase, which would have eliminated the media-oriented
program offices altogether.
In 1995, the House and Senate Appropriations Committees
commissioned the National Academy of Public Administration to
assess EPA's efforts in setting environmental priorities and
allocating resources. In part, NAPA recommended the following:
``The environmental control efforts should be integrated. In
consultation with Congress, and as part of the process of
integrating environmental statutes, the agency should begin
work on a reorganization plan that would break down the
internal walls between the agency's major `media' program
offices for air, water, waste, and toxic substances.'' That did
not happen.
In our opinion, many of the problems we see that impact the
efficiency and effectiveness of Agency operations have their
roots in EPA's organization. We believe that the protection of
the Nation's waters can be improved by an EPA that is
strategically aligned to consistently enforce environmental
statutes and provide oversight over the State delegations. This
is not an original issue. The challenge is not to evaluate
whether the task is needed or what the design would be; the
challenge is to actually get it done.
This concludes my prepared remarks. I would gladly answer
any questions the Committee may have.
Mr. Oberstar. Thank you very much, Mr. Najjum. Appreciate
your testimony.
Mr. Brown.
Mr. Brown. Thank you, Mr. Chairman and Members of the
Committee. First, ECOS's president, Mike Linder of Nebraska,
couldn't be here today because his State is having a special
session of the legislature to deal with tax revenue shortages,
which is, I am sorry to say, an all too familiar story around
the Country that I hear from my members. Mike and Administrator
Jackson shared leadership of the ECOS Compliance Committee only
last year, and he very much wanted to be here and sends his
apologies for not being able to.
The Committee is interested in what we can do to improve
enforcement in the Clean Water Act. We very much share that
desire and we look forward to the rest of the testimony that
will be given here today.
One of the things that I hope you understand is that States
do conduct 95 percent of the enforcement that is conducted
between us and EPA. It is not a qualitative statement, it is a
quantitative statement. But we are now living in an era not of
doing more with less, but of doing less with less.
There are three main points I want to make to you today,
and that is, one, both the States and EPA have a role in
enforcement, and we must work cooperatively if we are both
going to succeed, and that is something that we very much want
to do. Secondly, that States are committed to achieving full
compliance for all regulated sources and keeping them in
compliance, and we will use the full spectrum of environmental
enforcement tools to do that. And the third point is that State
enforcement is under duress due to reductions in funding from
both Federal and State sources.
ECOS understands that EPA's Clean Water Act enforcement
action plan, which was just released today--we haven't had a
chance to study it, but it contemplates using regional and
State staff work-sharing to utilize resources efficiently and
maybe to ask States to certify data that goes to EPA. We think
these are positive direction steps. We hope to work with EPA as
we jointly implement that enforcement plan, and we anticipate
doing that with them.
From a State perspective, returning a facility to
compliance to achieve clean water goals is our top priority.
Enforcement occurs when compliance does not. But enforcement
has many faces. For routine non-compliances, if there is such a
thing--and we believe there is--States will often undertake so-
called informal enforcement actions.
Having done these myself, I assure you that most facilities
do not consider them informal. Such actions may include oral
and written warnings and voluntary compliance agreements, and
the important thing about them is they return the facility to
compliance quickly about 80 percent of the time. Such actions
also cost the State agencies less than the so-called formal
enforcement actions, which States also regularly use.
Formal actions are, however, what EPA measures. This is
part of the reason that State and EPA compliance data sometimes
don't match, because if a State completes an informal action
and returns a facility to compliance, but EPA was under the
impression that a formal action was needed, it will still show
that a formal action was never taken, even though the facility
is actually in compliance.
To the funding issue. State enforcement implementation is
under duress for two reasons: because of the budget deficits
that are occurring in 48 of the 50 States and in the
territories, and because of lackluster Federal support. States
are imposing hiring freezes, they are furloughing employees,
and they are reducing enforcement staff.
In the period 2001 to 2009, inflation ran at about 24
percent, but the increase in EPA's operational grants to States
only rose 11 percent. Federal support for State environmental
agencies increased to an all-time high in 2009 thanks to ARRA,
and we should see many compliance improvements over the next
few years at municipal sources because of that. However, this
increase did not extend to the operational funds that States
use to implement the Act, including enforcement, and States
receive no Federal grants that are dedicated to enforcement.
Furthermore, during this period of 2001 to 2009, EPA issued
hundreds of new rules which the States are expected to
implement and which we are eager to implement. EPA has
estimated--and you have heard this testimony earlier today--
that as many as one million new sources will be regulated by
the Clean Water Act. For example, over 60,000 vessels were
added to the list of regulated facilities this year alone. New
sources means more enforcement responsibilities under the Act.
Finally, I agree with the Administrator that continuing
uncertainty in the Clean Water Act due to several court cases
has increased the difficulty in ascertaining jurisdictional
authority over some polluters. ECOS has recommended steps to
Congress to address this issue and worked with this Committee,
and we continue to believe this is needed.
I would be happy to take questions.
Mr. Oberstar. Thank you very much. Very overall
comprehensive review of matters.
Mr. Porta.
Mr. Porta. Good afternoon now, Mr. Chairman and Members of
the Committee. My name is Tom Porta. I am the Deputy
Administrator for the Nevada Division of Environmental
Protection and the current President of the Association of
State and Interstate Water Pollution Control Administrators, or
ASIWPCA, as we are known.
I have been working in the State environmental quality
programs for over 25 years. The members of my association
appreciate the opportunity to provide testimony before you
today regarding States' administration of the Clean Water Act,
particularly in the arenas of discharge, permit compliance, and
enforcement. By far, the States and interstates do the lion's
share of work in protecting and improving the quality of our
Nation's waters.
Our message to you today is that States are doing a good
job enforcing the provisions of the Clean Water Act and should
be commended, given the many constraints they work under.
Recent headlines and news stories have highlighted
potential Clean Water Act violations that have gone unchecked
or unreported. While these situations warrant further
investigation, they represent a small part of the compliance
picture. It is important to consider other factors, including
the total number of parameters permit holders are required to
meet and report.
In the short time we had to prepare for this hearing, we
evaluated enforcement data from a handful of States.
Additionally, we looked at effluent limit violations versus
reporting violations. From the information compiled, the data
shows compliance rates in excess of 99 percent when it comes to
effluent violations and in excess of 95 percent when it comes
to reporting violations. While this was only a sampling of
States, I believe it is representative.
That is not to say that all aspects of State compliance and
enforcement programs are perfect. As with any environmental
program, improvements can always be made.
Administrator Jackson announced earlier this year her
intent to improve on the Clean Water Act enforcement and
compliance programs, and you heard her roll-out of the 90-day
action plan this morning. ASIWPCA agrees that improvements
should be made, and we have offered to closely work with EPA as
co-regulators to make this initiative work, with the caveat
that the expectations must be reasonable and will focus on
adding value to our enforcement and compliance programs.
So what should be done to enhance our States' efforts and
provide for effective State enforcement and compliance
programs? We believe there are five elements to effective
program, and they include the following: first, identify the
problems before they become violations through technical and
compliance assistance. EPA must rethink the value placed on
compliance assistance as the current oversight framework is
primarily focused on enforcement. Enforcement is necessary and
has its place, but is not the sole measure of success for the
water programs.
Second, water quality violations are top priority. Paint an
accurate picture of enforcement by redefining what truly is
significant noncompliance. The current definition is too broad
and includes minor paperwork in reporting violations that do
not impact water quality. While minor violations are important,
separating out these types of infractions would show a true
depiction of enforcement actions that impact water quality.
Third, when appropriate, resolve violations quickly through
non-formal enforcement actions. A wide variety of
administrative tools exist, from warning letters to consent
decrees. These approaches often result in prompt compliance and
more effectively use staff resources.
Fourth, take enforcement actions when necessary. The
authority to issue formal actions and assess penalties is
provided in Federal and State statutes, as well as regulations.
Formal enforcement actions should be reserved for cases
involving illicit dischargers, recalcitrant behavior, and other
significant violations.
And fifth and finally, track enforcement and compliance
with reasonable data systems. We can achieve greater levels of
information accuracy and transparency with the use of
electronic reporting and strategic data integration across
States. This would be a significant benefit to States and EPA,
given the ever-increasing number of new sources.
However, disincentives prevent full participation by the
regulated community. As an example, the requirements for
authenticating signatures for electronic filing are so onerous
it is easier for permittees to submit their information by
regular mail. The public should be able to easily obtain this
information through a simple, accurate, and accessible
database. Please note that enforcement information has always
been available to the public through State records and
databases, but the data has rarely been complete or accurate
through Federal data systems.
I have provided you with a few examples of problem areas in
the Clean Water Act enforcement programs and suggestions for
addressing these issues. In closing, ASIWPCA and its members
look forward to working with Administrator Jackson and her
staff to develop reasonable and sustainable measures to improve
upon the success of compliance and enforcement programs.
Thank you. That concludes my testimony.
Mr. Oberstar. Thank you, Mr. Porta. Appreciate your
participation and the information you have submitted.
Mr. Rumpler.
Mr. Rumpler. Chairman Oberstar, Members of the Committee,
good afternoon. My name is John Rumpler, Senior Attorney with
Environment America. We are a federation of 27 State-based
citizen supported environmental advocacy organizations, and in
my role as senior attorney I coordinate our clean water
advocacy work from Puget Sound to the Great Lakes to the
Chesapeake Bay. Just as the previous two speakers have talked
about, the great deal of our work is at the State level.
And while we don't exclusively focus on enforcement, we
have worked on reducing the use of toxic chemicals, we have
worked on runoff pollution, and a number of things. We have
also been deeply involved directly in clean water enforcement.
Most specifically, we have prevailed in 99 citizen suits to
compel violators of Clean Water Act permits to curb their
pollution and come in compliance with the law for our rivers,
lakes, and streams.
More systematically, we have done an overview of compliance
of major facilities with their NPDES permits. I am afraid that
our results paint a little bit of a different picture than Mr.
Porta just represented. Now I want to note for the record that
we were not talking about any paperwork violations. We were not
talking about minor violations. We were talking about
discharges of pollution in excess of limits set to protect
water quality.
Here is what we found in the year of 2005, and we had
similar results in previous years when we did this assessment.
Number one, the problem is widespread. Fifty-seven percent of
major facilities violated at least one discharge limit that
year. Overall, those facilities had 24,000 discharge
exceedances, again exceeding limits to protect public health
and the environment.
Nor were these minor. Of these 24,000 violations of these
permit limits, they averaged nearly four times the amount of
pollution allowed under law. In many cases these were chronic
repeat offenders. More than 600 of these facilities reported
effluent violations again and again and again just in the year
of 2005 alone.
Indeed, the best indicator of whether we, America, the
States, EPA, all of us, are doing a good job with the Clean
Water Act is whether our rivers, lakes, and streams are clean.
Unfortunately, with so many polluters dumping so much pollution
from direct sources into those waterways, it is not surprising
to us that nearly half of our rivers and streams are not safe
for fishing, drinking, or other uses. That is a fundamental
problem.
We offer the following solutions: We believe we need
tougher enforcement, more resources, and to restore the
protection of the Clean Water Act to all of America's
waterways.
Tougher enforcement, it is time to put the environmental
cop back on the beat. While there is some value to informal
measures from time to time, the practical reality of the matter
is that deterrence demands that penalties are certain, swift,
and severe enough to ensure that pollution no longer pays.
Moreover, we need to make sure that the underlying permits
themselves are strong enough to protect water quality. The
original Clean Water Act envisioned an end of direct discharges
by 1985. We are nowhere near that. States are not
systematically reviewing the permits and ratcheting down the
permit levels. We need to toughen the permits to get to clean
water.
Now, all of this takes resources. I couldn't agree more
that our State agencies and EPA--all of us--need more resources
to be able to do this job well. Possibly we should consider a
mandatory permit fee scheme, which I think some of my
colleagues can speak more specifically to.
But in addition to money for enforcement agencies, we also
need money for infrastructure. I want to applaud Congress and
the Obama Administration for the $4 billion in Clean Water
infrastructure money in the stimulus package. But we need to
build on that if we are ever going to end sewage overflows.
Finally, I would be remiss if I did not note to this
Committee the need to make sure that all of our waterways are
protected. There are many problems and challenges that we have
here today but that is one that this Committee has the power to
directly solve.
I thank you for your time. Let me make one final note, Mr.
Chairman. Next Thursday, a week from today, we will be
releasing a new report documenting the millions of gallons of
toxic chemicals discharged into our waterways using TRI data.
Thank you.
Mr. Oberstar. We will certainly look forward to that
report. Thank you for your testimony and your stout defense of
clean water.
Now, Mr. Shimshack?
Mr. Shimshack. Mr. Chairman and distinguished Members of
the Committee, thank you for the invitation to speak today.
While there are many facets of water quality management, I will
focus my remarks on understanding and strengthening the
performance of Clean Water Act monitoring and enforcement from
an independent research perspective.
To fully appreciate the issues, it is useful to first
provide some context. The first thing to note is that broadly
characterizing Clean Water Act performance is challenging.
Aggregate snapshots of Clean Water Act compliance are highly
sensitive to the chosen measurement instrument. Some reasonable
metrics suggest very high compliance while other reasonable
metrics simultaneously suggest low compliance. This may explain
some of the differences in opinion here today.
Second, regardless of how one defines noncompliance,
enforcement activity is infrequent compared to the number of
violations. Third, monetary penalties are especially rare and
levied fines tend to be extremely modest relative to fines
allowable under the law. Fourth, on average, enforcement
activity is declining over time.
Despite the relative scarcity of enforcement, a growing
academic and policy literature shows that State and Federal
Clean Water Act monitoring and enforcement actions, when
actually used, are highly effective. The research evidence
suggests that Clean Water Act inspections and sanctions
generate substantial specific deterrence, meaning that
inspections and enforcement actions consistently reduce future
violations at the evaluated or sanctioned facility. Formal
Clean Water enforcement actions and especially fines also
generate substantial general deterrence. Here, sanctions spill
over to deter violations at facilities beyond the sanctioned
entity. The essential intuition is that an enforcement action
at one facility enhances the regulator's reputation for
toughness across all facilities in the same State and sector.
The evidence also suggests, perhaps surprisingly, that
Clean Water Act enforcement actions not only meaningfully
affect compliance but they meaningfully affect pollution
discharges as well. When inspections and fines are deter
violations, pollution is of course reduced. However,
enforcement also encourages beyond compliance behavior.
Facilities with discharges that are typically below their
legally permitted levels often reduce discharges further when
the regulatory threat increases. Also, likely non-compliant
facilities often respond to increased regulatory threats by
reducing discharges beyond those required simply to meet
statutory limits.
To reiterate, the published evidence suggests that Clean
Water Act monitoring and enforcement actions, when used,
importantly influence both compliance and pollution. Several
implications follow.
First, a substantial improvement in environmental
performance may be achieved with a modest additional investment
in traditional monitoring and enforcement activity. The speed
and strength of observed pollution responses to relatively
small changes in the likelihood of enforcement suggests that
regulated entities can increase their current environmental
performance without incurring large capital costs such as those
required by installing new equipment.
Second, a substantial improvement in environmental
performance may be achieved with a modest additional investment
in enforcement stringency. The evidence suggests, perhaps not
surprisingly, that more stringent penalties deter more
violations and reduce more pollution. The research evidence on
informal actions, in contrast, is quite mixed. A reallocation
of discretionary enforcement resources towards more rigorous
sanctions may enhance performance.
Third, improving the performance of the Clean Water Act may
not require sweeping changes. Policy observers increasingly
advocate for voluntary, cooperative, informational, or other
alternative approaches to water pollution management. The
published evidence on the effectiveness of these approaches is
mixed.
In contrast, the evidence for important deterrence effects
from traditional enforcement is quite strong. In my opinion,
greater and more nuanced use of our current tools will have
predictable and meaningful results for environmental quality.
The potential impacts of more radical changes are poorly
understood.
Fourth, environmental regulators should consider more
vigorously publicizing their enforcement actions. Spillover
effects of sanctions on non-sanctioned facilities require that
companies know about monitoring and enforcement actions at
other companies. State and EPA authorities should consider
pilot programs that publicize sector-specific enforcement
details.
Finally, Congress, EPA, and the States should facilitate
more research on environmental enforcement and compliance
through enhanced research funding and improved data access.
Mr. Chairman and Committee Members, it is an honor to be
here today. Thank you for the opportunity.
Mr. Oberstar. We are glad to have you. Thank you.
Mr. Schaeffer?
Mr. Schaeffer. Thank you, Mr. Chairman and Members of the
Committee, for the opportunity to testify today. I am Eric
Schaeffer, Director of the Environmental Integrity Project. We
are a nonprofit organization that advocates for more effective
enforcement of Federal law. Formerly I worked in the
enforcement program at EPA.
First and foremost, let me thank you for holding this
hearing. I think, and many others think, that the Clean Water
Act is one of the best things Congress ever did. But as you
have heard today and as you have said yourselves, we have a lot
of work left to do. The law's implementation needs your
attention. So your oversight is very, very welcome and I think
it will do a lot of good.
As we have already heard, State agencies do bear most of
the responsibility for writing and enforcing Clean Water Act
permits under grants of authority from EPA. It is just a fact
that some States do a reasonably good job carrying out those
responsibilities while others have not. The Agency has got to
step up oversight of State agencies where the States are either
not able or willing to do the job. That is the only way we are
going to make sure that all citizens have access to clean
water, and that we get the level playing field that the law is
actually supposed to provide.
This is difficult, grinding work. We certainly need EPA to
work in partnership with the States and give them assistance
where they need it. But there are times when EPA has to say
that what we are seeing from this particular agency on this
issue is not good enough. That is just very difficult to do.
EPA has to methodically look at permits, and sometimes
object to bad permits. It certainly needs to be ready to take
enforcement action where the States aren't doing it, or won't
do it.
We also need regular program reviews to see how not only
State agencies are doing, but how EPA regional offices are
doing. Perhaps that function ought to be set up and
standardized at the Inspector General's Office so that you can
get the kind of arm's length audit of the program to decide
whether things are going in the right direction.
Now, I agree with what we have heard from Mr. Brown. It is
very difficult, impossible really, for States to run a complex
Federal program like the Clean Water Act without adequate
resources. States are badly under-funded. You spoke earlier,
Mr. Chairman, and other Members of the Committee did as well,
about stepping up public financing of wastewater treatment
plants. That is critical, and I hope you are successful in that
effort. But we also need to find a way to pay for the State
agencies' staff that do the hard work of reading the permits,
writing the permits, dealing with public comments, and carrying
out the enforcement actions.
Under the Clean Air Act, the Congress requires States to
assess emission fees that are actually adequate to cover State
program costs. That is a requirement in Federal law. It has
worked pretty well. State air programs, while there is never
quite enough money, are largely self-financed now through those
emission fees. Perhaps you could consider the same thing under
the Clean Water Act. That would be a Federal mandate to assess
fees on the big dischargers that are high enough to pay for
program costs.
I will put in a plug for electronic data. I agree with Mr.
Porta that we are in the electronic age. Information about
violations and about discharges ought to be readily available
on EPA's website and on State websites. EPA has tried to make
this happen through the ECHO database. I should say that this
was an initiative started under the Clinton Administration but
strongly supported under the Bush Administration, to its
credit, so it has a bipartisan track record. Certainly it can
be improved. EPA will need State cooperation. Some data is not
entered that ought to be into that national database. We need
to get States to do that.
I think the last point I will try to make quickly is that
it is good, with all the complexities about trying to measure
compliance and how we are doing, to just remember the first
principles that ought to really underlie any law but are
certainly true of the Clean Water Act: Polluters ought to pay
for their violations. The more you pollute, the more you should
have to pay.
I have attached at the back of my testimony an example of
effluent discharges at major power plants. As you can see,
these are companies that are regularly reporting that they
exceed their permit limits by a factor of 20 or 30 times. In
other words, their discharges are 20, 30, 40 times what the
permits actually allow. By all means, let us not waste our time
with minor paperwork. There are plenty of large polluters that
I think today are going unpunished. Basically, there is not
really much of an enforcement response.
I have taken this data from EPA's website. If it is
correct, I would encourage you to follow up and ask EPA and the
State agencies where these plants are located what they plan to
do about these facilities. What is the enforcement status? Has
anyone issued a notice of violation? How much are they going to
pay? There are many other examples in the database that you
could use. Focus on the illegal discharges, as everybody I
think here has suggested, and I think you will find plenty of
work to do.
Thank you very much for the opportunity to testify.
Mr. Oberstar. Thank you, Mr. Schaeffer. I appreciate your
testimony as well.
All witnesses have covered a wide range of issues of
importance in this review of the EPA enforcement program.
The law seems clear that economic benefit from a violation
of the Clean Water Act should be recaptured in the enforcement
both--I said this at the outset--to reduce the incentive or the
temptation to pollute but also as a deterrence. How do you
calculate economic benefits? Can the GAO do an assessment of
that issue? Is this being done? Is that aspect of the Act being
carried out?
Ms. Mittal. We didn't actually do an assessment of how the
penalties are being calculated. What we did find is that it is
a very subjective process and different States do it
differently. Some States have the authority to assess the
economic benefit, some States do not. So what we found are huge
variations in how the States were actually making the
calculations of the penalty.
Mr. Oberstar. Do others have a comment on that issue? Mr.
Porta?
Mr. Porta. Yes. EPA has what they call the BEN Model. It is
an economic benefit model. In our State when we have run the
model or tried to get the data to run the model, it comes up
with a number that is fairly exorbitant for the smallest
violation, in the six and seven figure range. So there is the
tool out there but I would think the tool would need to be
refined.
To gather the data to determine economic benefit from a
company, it is not easy. It is not an easy task to try to find
out through tax records or what have you what their actual
economic benefit was by going over the limit.
So it is not an easy task to do but there is a tool that
EPA has. I think it definitely needs refinement.
Mr. Oberstar. This notion of benefits and costs runs
through a number of programs under the jurisdiction of this
Committee, including that of the Corps of Engineers and also
the Federal Transit Agency. In the previous Administration,
they used benefits analysis to deny projects or slow down
transit projects by including some costs and excluding other
benefits.
I think what GAO is saying is that there is an
inconsistency. In fact, the thrust of your testimony is that
the whole management of the EPA program is shot through with
inconsistencies.
Ms. Mittal. That is correct. We believe that there is a lot
of inconsistency in how the whole enforcement program is being
managed by EPA.
One of the biggest concerns we have is that they do not
have the data that they need to find out what is causing these
inconsistencies. Are these inconsistencies bad, are they okay?
Is it all right for the States to continue to have inconsistent
enforcement of the Act?
We don't think inconsistency is a good thing. We believe
that EPA should have some fundamental, basic principles to
ensure that all State programs will provide a certain minimum
level of enforcement. But right now they don't have the data to
find out what is causing all of these variations in the State
programs.
Mr. Oberstar. I just made note of the various kinds of
inconsistencies. You said the enforcement varies on inspection
for facilities. Penalties vary by region. There is varied
enforcement by region. There are different strategies for
oversight by region. There are differences in State laws. That
is something that EPA should work to develop consistency in,
though not totally because water situations differ from place
to place. Funding by EPA regions varies. Data on enforcement is
incomplete and inadequate. That is a sorry state of affairs at
EPA and one that leads to discrediting the program.
Ms. Mittal. Well, we are very concerned about it, sir. The
variations are in and of themselves not bad. That is what we
try to emphasize. Sometimes you need to have variations because
you have got local conditions, you have got local concerns. You
have got to have a program that is flexible enough to address
all of these concerns. The problem is when we look behind those
variations.
EPA could not provide us good information on what was
causing those variations. We had to do that analysis ourselves.
When we look at what causes those variations, that is what
leads to inconsistency. We believe that inconsistency is bad.
Mr. Oberstar. One of the thrusts of the Clean Water Act--we
will go back to 1971 and 1972 when we were shaping the bill in
this very Committee room and then the House-Senate conference--
was that a whole range of industries, the chemical industries,
manufacturing of various kinds, and processing, supported the
notion of the Clean Water Act because they wanted consistency
among the States. They did not want to have runaway pollution-
friendly States where their competitors could seek comfort
while they were locked in a State that has high standards and
couldn't go to another one that has low standards or no
standards. That was the thrust of the conferees, both House and
Senate, establishing consistency. Now you are saying that
consistency has deteriorated.
Mr. Brown?
Mr. Brown. ECOS also had a concern about the consistency
back in 2005 when we proposed the State Review Framework to
EPA. I think it is probably fair to say that it is no longer in
development, but we are in the process now of doing the second
tier of those. The first tier clearly was a learning experience
for everyone involved. But it was because States were concerned
about some of the inconsistencies that Ms. Mittal mentioned. So
we agree, they need to be reconciled. We are hoping the other
SRF, as we call it, the State Review Framework for enforcement,
will help reveal those and eliminate them.
Mr. Oberstar. Mr. Najjum?
Mr. Najjum. Thank you, Mr. Chairman. We agree with a lot of
what GAO has found in terms of inconsistency in policy across
the regions. It is one of the things that we note constantly
when we are looking at a national program and go out to see how
it is being enforced and what is actually happening.
We find that it is more of a symptom. The symptom is a lack
of a national concept of what it is that EPA would like the
regions to do. When they talk about flexibility, we find often
that the flexibility is that there aren't really any rules. You
are leaving it up to each of the regions to independently
determine how they will actually enforce. When you have ten
regions determining how they will enforce, recognizing that
sometimes you do need to have some local thoughts in there, you
really have a mishmash of enforcement sometimes. The
flexibility reaches a point where it can become chaos.
Mr. Oberstar. Thank you very much.
I yield now to Mr. Boozman.
Mr. Boozman. Thank you, Mr. Chairman. It sounds like we all
agree, then, that we need much better data coming from EPA so
we can evaluate what the problems actually are.
I think you all found that there is inconsistency in
enforcement. Yet, as was stated, sometimes there is a reason.
Individual locations vary so there is going to be some
inconsistency. But when you go back to the reason for that, the
logic ought to be the same in every place. We can agree on
that. The enforcement piece, that we have more consistent
enforcement throughout the regions, I think we can agree on
that.
The other thing that I see is that there is inconsistent
logic and inconsistent science behind some of the enforcement.
Instead of things that are reasonable or that can be done where
it is manageable from an expense standpoint, sometimes we get
into such stringent enforcement. You can do a tremendous amount
of good by enforcing in some manner. Then you get down and you
get way below that and the cost becomes just so expensive that
it becomes a real problem.
I was visiting with the Chairman as we were sitting here
earlier. I am here at all these hearings. I know all about the
Chesapeake. I know all about all of our different water bodies
now and their problems. One of the things I am hearing from
Members more and more, though, is that they are getting these
things thrust upon them that their constituents just can't meet
in terms of the standards. Somebody mentioned earlier, I think
Mr. Latta, that they would be better off just buying the
communities out because the standard is so tough that they just
can't meet it. If we have that trend continue, we are going to
lose Congressional support. I really fear for that as we start
doing that. You guys who are involved in these studies can
understand that. That is a real, real problem.
I guess what I would like to do is see what else we can,
again, those three things that I mentioned with the enforcement
piece, being more consistent, and better data, what else we can
agree on that we can go forward with. Mr. Brown?
Mr. Brown. I think you have a good list, but I would add
one thing to the data part. It is not enough that we have a
good exchange of data, that the data is clear, and that we
agree on it. We also have to agree on how to interpret that
data. That is something we have never really talked about much.
We need to have methodologies of data interpretation that are
defensible and that are based on good statistics. Many of the
things that Dr. Shimshack said, I completely agreed with. You
can look at the same data and come up with widely varying
conclusions if you don't use good techniques for reviewing that
data. That is something I think we also need to have.
Mr. Boozman. Well, that is one of the leading causes,
probably, of the inconsistency of enforcement in different
regions. As you say, that data can mean different things to
different regions and lead to different remedies. But I agree
with you very much. So in that sense we need better science as
to what that really means.
What else can we agree on? Yes, sir?
Mr. Schaeffer. Congressman, just reacting to Mr. Brown's
response, I am all for better methodologies and finer
statistics but I want to make sure we don't over-complicate the
problem. For about 40 years, the law has required facilities to
report their discharges. Those discharge limits that facilities
have to meet are set in permits. Those are more often than not
economically sensitive. They are set to be affordable. I think
we don't need a lot of work on methodology to agree that if you
are 20 or 30 times over your limit, something ought to be done.
That is a serious violation and there ought to be a response. I
am hoping we can at least agree on that.
I understand there are issues with whether or not paperwork
violations ought to have the agencies' attention. I just want
to reiterate that we have lots and lots of information about
discharges that are way over permit limits. The question in
those cases is not whether enforcement is consistent or what
are the differences in enforcement response? There is no
enforcement at all. I hope that gets the Committee's attention
as well.
Mr. Boozman. I agree. Certainly, all crimes are not the
same. Certainly those need to be enforced. Some of them really
need to be enforced, I am sure.
Yes, sir?
Mr. Porta. When the New York Times article came out,
obviously the States looked at their own enforcement and
compliance data. I just want to give you an idea for that same
four year period that the New York Times looked at in the State
of Utah. Over four years they had 116 permitted facilities.
There was a potential for effluent violations 236,976 times in
that four year period. To have a compliance rate of 99.3, those
are the data and percentages that I look at.
If you have got that many potential points to violate,
inevitably you are going to violate a standard at some point
either through a plant malfunction or a system operator
mistake. It is going to happen. Literally, the number of points
for potential effluent violations throughout the Country is in
the millions every year.
Mr. Boozman. Very good.
Thank you, Mr. Chairman. I hope that in working together on
these things that we have agreed upon, the data piece and
things like that, that we can get together and figure out
either through oversight or legislation how to help EPA. It
might be that we are just not giving them the resources that we
might need to do a better job of oversight. But these things
that we all seem to agree on we need to get straight.
Mr. Oberstar. Thank you for that comment. This is the
beginning of that process of inquiry and understanding, of
establishing a database, finding the shortcomings, and then
proceeding from there on how we ought to correct them.
Mr. Taylor, the gentleman from Mississippi?
Mr. Taylor. I will pass.
Mr. Oberstar. You can't pass. You are the only one who
hasn't spoken.
Mr. Taylor. Mr. Chairman, I am very much aware that two
thirds of the continental United States drains down the
Mississippi River. When the wind blows out of the west, it goes
right in front of my district.
I am very much appreciative for your efforts to remind
everyone that water moves from place to place. Pollution in one
State ends up in another State. The dead zone in the Gulf of
Mexico is very much a result of the over-use of fertilizers in
some States and the levies along the Mississippi taking what
used to flow into the marshes naturally and channeling it all
into the Gulf.
So I support your efforts. I understand where you are
coming from. I welcome these folks' thoughts as we try to do
this right.
Mr. Oberstar. I thank the gentleman for that observation.
My wife is from Louisiana, as Mr. Taylor knows. The Mississippi
begins in my State, if not exactly in my district, and I have
said we and the other ten States along the Mississippi are
responsible, the Ohio, the Illinois, the Missouri River
systems, for all the debris that wind up in Mississippi and
Louisiana. Jean sometimes jokes that that is the reason their
bread is so good, that it is taken from such sturdy water with
all the flavors of the 11 States that drain into the Gulf of
Mexico.
Mr. Taylor. Mr. Chairman, it has a lot more to do with the
oysters we harvest than the bread that is produced in someone
else's State. That is why I have great empathy for the clam
fisherman who was here a little while ago. Obviously all of
that is a function of whether or not those industries will
thrive and survive or will go out of business.
Mr. Oberstar. Thank you.
The Inspector General's testimony, Mr. Najjum, refers to a
separation between media programs and functional categories. It
was the intent of the Act that the program be administered
according to water, air, pesticide, radiation, solid waste and
so on. A few years later during the Nixon Administration these
were all combined into functional categories which made the
operation of the program difficult. Could you unwind that for
us and tell us how we can get back to that in your experience
and your overview of the program?
Mr. Najjum. I am not sure I can unwind it completely. What
we have noticed in looking at the stovepipes within EPA as we
look at each of the programs, we think that there is a better
use of resources in a functional basis particularly for
enforcement. We mention the original 1970 memo on the
Government reorganization. I think it was the Ash Council.
Mr. Oberstar. The Ash Council is right, correct.
Mr. Najjum. I am probably not the right one to be talking
to you about the history of the Environmental Protection
Agency. But the Agency's own history said that when they looked
at it, they were organizing and combining functions, they had
decided at that time that organizing by media was not the
correct way to go. They had a three phase plan to get to it.
They got through the second phase and the third phase became
too hard because of the issues they were facing. It has come up
again and again.
We look at it from a point of view much like Goldwater-
Nichols in the Department of Defense where you had to take the
three services and organize them into a modern-day Department
of Defense that actually does its mission. I worked for DOD
back in the 1980s and 1990s. That was a hard, hard thing. DOD
would never have done that itself. I think we also have seen
the quadrennial review that Homeland Security has taken on.
Look at the organization from a mission perspective of what
it is that you would like the Environmental Protection Agency
to accomplish and how it should go about accomplishing it. Part
of that may be the electronic infrastructure we talk about in
terms of bringing information together. You certainly don't
need to filter that through ten different regions. Maybe in
1970 we did but in 2010 we don't. We have a whole different
electronic infrastructure. EPA's infrastructure has pretty much
been organized along media lines and not a functional line.
So we think there are some big resource savings in
organization and infrastructure.
Mr. Oberstar. That is an administrative adjustment that can
be made?
Mr. Najjum. Correct.
Mr. Oberstar. Mr. Rumpler, you made a very important
distinction about enforcing discharge of pollutants versus
enforcement on paper or reporting violations. Where does one
end and the other begin? Where does paper end? Where does
technical violation end and where does polluting of the waters
begin?
Mr. Rumpler. Well, I think it is quite simple. In terms of
the discharge monitoring reports that the facilities themselves
are required to submit to the State agencies and the EPA in
those cases where EPA administers directly, on those forms they
indicate exactly how much pollution of each type that is
regulated they are putting into the water body. So these are
self-admitted exceedances of a clearly defined pollution limit
in the permit.
Let me just say before we completely dismiss so-called
paperwork or reporting problems that while I agree with all of
my colleagues here that they are a less important priority than
the obvious discharge of pollutants in excess of permit limits,
it is possible that failure to report is masking substantive
violations.
Mr. Oberstar. Well, that is what I am getting at.
Mr. Rumpler. We just won't ever know. I do believe that in
California there are actually small but mandatory minimum
penalties even for reporting violations to ensure that those
reports are routinely and regularly put through. Because they
are mandatory minimums that are administratively assessed, they
take very little agency resources to do. So I am not suggesting
that we should put a lot of agency resources into this. But
there may be an automated way to clean up some of that stuff in
addition to, of course, focusing most of the agency resources
on the substantive pollution that is coming up.
Mr. Oberstar. In aviation we place a heavy reliance on data
and the paper trail of maintenance actions. Absence of
reporting often leads to an absence of maintenance with the
resulting failure of a part and a crash and fatalities.
We have two minutes before we have to go--we probably
should be leaving right now--so I want to make sure that I
yield to Mr. Boozman.
Mr. Boozman. I just very quickly want to say, because we do
have to go, that the Federal Government under the past two
Presidents has put a little bit more money into enforcement. In
the States, is their enforcement money going down or is it
staying the same as far as their budgets?
Mr. Brown. Well, it is tough to say because we don't
separate enforcement out from all the rest of it. As I said in
my testimony, we don't----
Mr. Boozman. How about all of it?
Mr. Brown. You mean overall? It is going down right now,
overall. That is not just for environment but across State
government.
Mr. Boozman. That is a problem. It is difficult for them to
go down and then for us to take up the slack. So that is
something else I think we need to look at, Mr. Chairman.
Mr. Oberstar. Thank you very much, Mr. Boozman. I just want
to say that we provided funding for State enforcement actions
in the State Revolving Loan Fund bill that passed the Congress
in the 110th. We have it again in this year's version of that
bill. I also included such funding in the House version of the
stimulus bill but it didn't make it through conference.
Mr. Porta, you had something to add?
Mr. Porta. Yes, just real quickly. With the States'
economic situation, obviously as water administrators we have
to make decisions. As the funding goes down, the first people
we typically will look at are the data gatherers. I would
rather have inspectors in the field than permit writers in
terms of paying for those positions. So typically data is
unfortunately a lower priority.
With regard to Mr. Rumpler's comment about reporting, it is
very significant. My response to him would be that if there are
reporting violations, you deal with that. Once the reports come
in, then if there are effluent violations, you deal with that.
It is not like these are neglected.
On the effluent violations, sometimes we are dealing with
very small overages of the standard. Therefore, how do you deal
with that? Do you bring out the heavy guns and assess a huge
penalty because they were slightly over for iron but may have
not affected the water quality?
Mr. Oberstar. I have to interrupt you at that point, Mr.
Porta, because we are down to zero. We have to get over to the
Floor to vote. I have a series of other Committee activities
before I rap the gavel.
I just want to observe that Mr. Shimshack discussed issues
of publication of enforcement action, data access, research
funding, and traditional monitoring. Mr. Schaeffer discussed
oversight of State programs and State agency staffing, which
Mr. Porta has also referred to. That, combined with the
inconsistency in enforcement and the functional problems within
the program, is enough for us to continue a serious oversight
of the EPA enforcement program. We will continue that work all
throughout this session and the next session of Congress. We
will impress upon the Agency those changes that can be done
administratively and, where necessary, we will take legislative
action.
We appreciate your participation and the contributions that
all of you have made to a deeper understanding of the state of
our enforcement of EPA programs. Thank you very much.
The Committee is adjourned.
[Whereupon, at 2:45 p.m., the Committee was adjourned.]
[GRAPHIC] [TIFF OMITTED] T2881.021
[GRAPHIC] [TIFF OMITTED] T2881.022
[GRAPHIC] [TIFF OMITTED] T2881.023
[GRAPHIC] [TIFF OMITTED] T2881.024
[GRAPHIC] [TIFF OMITTED] T2881.025
[GRAPHIC] [TIFF OMITTED] T2881.026
[GRAPHIC] [TIFF OMITTED] T2881.027
[GRAPHIC] [TIFF OMITTED] T2881.028
[GRAPHIC] [TIFF OMITTED] T2881.029
[GRAPHIC] [TIFF OMITTED] T2881.030
[GRAPHIC] [TIFF OMITTED] T2881.031
[GRAPHIC] [TIFF OMITTED] T2881.032
[GRAPHIC] [TIFF OMITTED] T2881.033
[GRAPHIC] [TIFF OMITTED] T2881.034
[GRAPHIC] [TIFF OMITTED] T2881.035
[GRAPHIC] [TIFF OMITTED] T2881.036
[GRAPHIC] [TIFF OMITTED] T2881.037
[GRAPHIC] [TIFF OMITTED] T2881.038
[GRAPHIC] [TIFF OMITTED] T2881.039
[GRAPHIC] [TIFF OMITTED] T2881.040
[GRAPHIC] [TIFF OMITTED] T2881.041
[GRAPHIC] [TIFF OMITTED] T2881.042
[GRAPHIC] [TIFF OMITTED] T2881.043
[GRAPHIC] [TIFF OMITTED] T2881.044
[GRAPHIC] [TIFF OMITTED] T2881.045
[GRAPHIC] [TIFF OMITTED] T2881.046
[GRAPHIC] [TIFF OMITTED] T2881.047
[GRAPHIC] [TIFF OMITTED] T2881.048
[GRAPHIC] [TIFF OMITTED] T2881.049
[GRAPHIC] [TIFF OMITTED] T2881.050
[GRAPHIC] [TIFF OMITTED] T2881.051
[GRAPHIC] [TIFF OMITTED] T2881.052
[GRAPHIC] [TIFF OMITTED] T2881.053
[GRAPHIC] [TIFF OMITTED] T2881.054
[GRAPHIC] [TIFF OMITTED] T2881.055
[GRAPHIC] [TIFF OMITTED] T2881.056
[GRAPHIC] [TIFF OMITTED] T2881.057
[GRAPHIC] [TIFF OMITTED] T2881.058
[GRAPHIC] [TIFF OMITTED] T2881.059
[GRAPHIC] [TIFF OMITTED] T2881.060
[GRAPHIC] [TIFF OMITTED] T2881.061
[GRAPHIC] [TIFF OMITTED] T2881.062
[GRAPHIC] [TIFF OMITTED] T2881.063
[GRAPHIC] [TIFF OMITTED] T2881.064
[GRAPHIC] [TIFF OMITTED] T2881.065
[GRAPHIC] [TIFF OMITTED] T2881.066
[GRAPHIC] [TIFF OMITTED] T2881.067
[GRAPHIC] [TIFF OMITTED] T2881.068
[GRAPHIC] [TIFF OMITTED] T2881.069
[GRAPHIC] [TIFF OMITTED] T2881.070
[GRAPHIC] [TIFF OMITTED] T2881.071
[GRAPHIC] [TIFF OMITTED] T2881.072
[GRAPHIC] [TIFF OMITTED] T2881.073
[GRAPHIC] [TIFF OMITTED] T2881.074
[GRAPHIC] [TIFF OMITTED] T2881.075
[GRAPHIC] [TIFF OMITTED] T2881.076
[GRAPHIC] [TIFF OMITTED] T2881.077
[GRAPHIC] [TIFF OMITTED] T2881.078
[GRAPHIC] [TIFF OMITTED] T2881.079
[GRAPHIC] [TIFF OMITTED] T2881.080
[GRAPHIC] [TIFF OMITTED] T2881.081
[GRAPHIC] [TIFF OMITTED] T2881.082
[GRAPHIC] [TIFF OMITTED] T2881.083
[GRAPHIC] [TIFF OMITTED] T2881.084
[GRAPHIC] [TIFF OMITTED] T2881.085
[GRAPHIC] [TIFF OMITTED] T2881.086
[GRAPHIC] [TIFF OMITTED] T2881.087
[GRAPHIC] [TIFF OMITTED] T2881.088
[GRAPHIC] [TIFF OMITTED] T2881.089
[GRAPHIC] [TIFF OMITTED] T2881.090
[GRAPHIC] [TIFF OMITTED] T2881.091
[GRAPHIC] [TIFF OMITTED] T2881.092
[GRAPHIC] [TIFF OMITTED] T2881.093
[GRAPHIC] [TIFF OMITTED] T2881.094
[GRAPHIC] [TIFF OMITTED] T2881.095
[GRAPHIC] [TIFF OMITTED] T2881.096
[GRAPHIC] [TIFF OMITTED] T2881.097
[GRAPHIC] [TIFF OMITTED] T2881.098
[GRAPHIC] [TIFF OMITTED] T2881.099
[GRAPHIC] [TIFF OMITTED] T2881.100
[GRAPHIC] [TIFF OMITTED] T2881.101
[GRAPHIC] [TIFF OMITTED] T2881.102
[GRAPHIC] [TIFF OMITTED] T2881.103
[GRAPHIC] [TIFF OMITTED] T2881.104
[GRAPHIC] [TIFF OMITTED] T2881.105
[GRAPHIC] [TIFF OMITTED] T2881.106
[GRAPHIC] [TIFF OMITTED] T2881.107
[GRAPHIC] [TIFF OMITTED] T2881.108
[GRAPHIC] [TIFF OMITTED] T2881.109
[GRAPHIC] [TIFF OMITTED] T2881.110
[GRAPHIC] [TIFF OMITTED] T2881.111
[GRAPHIC] [TIFF OMITTED] T2881.112
[GRAPHIC] [TIFF OMITTED] T2881.113
[GRAPHIC] [TIFF OMITTED] T2881.114
[GRAPHIC] [TIFF OMITTED] T2881.115
[GRAPHIC] [TIFF OMITTED] T2881.116
[GRAPHIC] [TIFF OMITTED] T2881.117
[GRAPHIC] [TIFF OMITTED] T2881.118
[GRAPHIC] [TIFF OMITTED] T2881.119
[GRAPHIC] [TIFF OMITTED] T2881.120
[GRAPHIC] [TIFF OMITTED] T2881.121
[GRAPHIC] [TIFF OMITTED] T2881.122
[GRAPHIC] [TIFF OMITTED] T2881.123
[GRAPHIC] [TIFF OMITTED] T2881.124
[GRAPHIC] [TIFF OMITTED] T2881.125
[GRAPHIC] [TIFF OMITTED] T2881.126
[GRAPHIC] [TIFF OMITTED] T2881.127
[GRAPHIC] [TIFF OMITTED] T2881.128
[GRAPHIC] [TIFF OMITTED] T2881.129
[GRAPHIC] [TIFF OMITTED] T2881.130
[GRAPHIC] [TIFF OMITTED] T2881.131
[GRAPHIC] [TIFF OMITTED] T2881.132
[GRAPHIC] [TIFF OMITTED] T2881.133
[GRAPHIC] [TIFF OMITTED] T2881.134
[GRAPHIC] [TIFF OMITTED] T2881.135
[GRAPHIC] [TIFF OMITTED] T2881.136
[GRAPHIC] [TIFF OMITTED] T2881.137
[GRAPHIC] [TIFF OMITTED] T2881.138
[GRAPHIC] [TIFF OMITTED] T2881.139
[GRAPHIC] [TIFF OMITTED] T2881.140
[GRAPHIC] [TIFF OMITTED] T2881.141
[GRAPHIC] [TIFF OMITTED] T2881.142
[GRAPHIC] [TIFF OMITTED] T2881.143
[GRAPHIC] [TIFF OMITTED] T2881.144
[GRAPHIC] [TIFF OMITTED] T2881.145
[GRAPHIC] [TIFF OMITTED] T2881.146
[GRAPHIC] [TIFF OMITTED] T2881.147
[GRAPHIC] [TIFF OMITTED] T2881.148
[GRAPHIC] [TIFF OMITTED] T2881.149
[GRAPHIC] [TIFF OMITTED] T2881.150
[GRAPHIC] [TIFF OMITTED] T2881.151
[GRAPHIC] [TIFF OMITTED] T2881.152
[GRAPHIC] [TIFF OMITTED] T2881.153
[GRAPHIC] [TIFF OMITTED] T2881.154
[GRAPHIC] [TIFF OMITTED] T2881.155
[GRAPHIC] [TIFF OMITTED] T2881.156
[GRAPHIC] [TIFF OMITTED] T2881.157
[GRAPHIC] [TIFF OMITTED] T2881.158
[GRAPHIC] [TIFF OMITTED] T2881.159
[GRAPHIC] [TIFF OMITTED] T2881.160
[GRAPHIC] [TIFF OMITTED] T2881.161
[GRAPHIC] [TIFF OMITTED] T2881.162
[GRAPHIC] [TIFF OMITTED] T2881.163
[GRAPHIC] [TIFF OMITTED] T2881.164
[GRAPHIC] [TIFF OMITTED] T2881.165
[GRAPHIC] [TIFF OMITTED] T2881.166
[GRAPHIC] [TIFF OMITTED] T2881.167
[GRAPHIC] [TIFF OMITTED] T2881.168
[GRAPHIC] [TIFF OMITTED] T2881.169