[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
REGULATORY OVERREACH: IS EPA MEETING ITS SMALL BUSINESS OBLIGATIONS?
=======================================================================
HEARING
before the
COMMITTEE ON SMALL BUSINESS
UNITED STATES
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD
JULY 30, 2014
__________
[GRAPHIC] [TIFF OMITTED]
Small Business Committee Document Number 113-079
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HOUSE COMMITTEE ON SMALL BUSINESS
SAM GRAVES, Missouri, Chairman
STEVE CHABOT, Ohio
STEVE KING, Iowa
MIKE COFFMAN, Colorado
BLAINE LUETKEMEYER, Missouri
MICK MULVANEY, South Carolina
SCOTT TIPTON, Colorado
JAIME HERRERA BEUTLER, Washington
RICHARD HANNA, New York
TIM HUELSKAMP, Kansas
DAVID SCHWEIKERT, Arizona
KERRY BENTIVOLIO, Michigan
CHRIS COLLINS, New York
TOM RICE, South Carolina
NYDIA VELAAZQUEZ, New York, Ranking Member
KURT SCHRADER, Oregon
YVETTE CLARKE, New York
JUDY CHU, California
JANICE HAHN, California
DONALD PAYNE, JR., New Jersey
GRACE MENG, New York
BRAD SCHNEIDER, Illinois
RON BARBER, Arizona
ANN McLANE KUSTER, New Hampshire
PATRICK MURPHY, Florida
Lori Salley, Staff Director
Paul Sass Deputy Staff Director
Barry Pineles, Chief Counsel
Michael Day, Minority Staff Director
C O N T E N T S
OPENING STATEMENTS
Page
Hon. Sam Graves.................................................. 1
Hon. Nydia Velaazquez............................................ 2
WITNESS
Hon. Bob Perciasepe, Deputy Administrator, Environmental
Protection Agency, Washington, DC.............................. 3
APPENDIX
Prepared Statement:
Hon. Bob Perciasepe, Deputy Administrator, Environmental
Protection Agency, Washington, DC.......................... 30
Questions and Answers for the Record:
Questions and Answers from Hon. Sam Graves to Hon. Bob
Perciasepe................................................. 35
Questions and Answers from Hon. Mick Mulvaney, Hon. Tom Rice,
and Hon. Scott Tipton to Hon. Bob Perciasepe............... 40
Questions and Answers from Hon. Mick Mulvaney to Hon. Bob
Perciasepe................................................. 41
Questions and Answers from Hon. Scott Tipton to Hon. Bob
Perciasepe................................................. 43
Additional Material for the Record:
Chamber of Commerce.......................................... 46
Joint Field Hearing on EPA Water Grab........................ 49
National Association of Realtors............................. 100
RISE - Responsible Industry for a Sound Enviroment........... 120
WAC - Waters Advocacy Coalition.............................. 123
REGULATORY OVERREACH: IS EPA MEETING ITS SMALL BUSINESS OBLIGATIONS?
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WEDNESDAY, JULY 30, 2014
House of Representatives,
Committee on Small Business,
Washington, DC.
The Committee met, pursuant to call, at 1:00 p.m., in Room
2360, Rayburn House Office Building. Hon. Sam Graves [chairman
of the Committee] presiding.
Present: Representatives Graves, Chabot, Leutkemeyer,
Tipton, Hanna, Huelskamp, Schweikert, Collins, Velaazquez, and
Payne.
Chairman GRAVES. Good afternoon, everyone. We will bring
the hearing to order. I want to thank everyone for being here.
The mission of the EPA is to protect human health and the
environment. Lately, the EPA has ventured well beyond its
mission. Its recent rulemakings are an unprecedented power grab
that are infringing on the rights of both the individual and
small business owners. The results on our economy are
potentially devastating and the EPA needs to reevaluate its
decisions.
These rules have real and direct consequences for small
businesses, and the American public deserves to have a complete
picture of the costs and benefits of all these rules.
Unfortunately, EPA seems focused on telling one side of the
story and ignoring the other.
What the EPA is not revealing is how its rules will affect
small businesses. The EPA is required to tell that story by the
Regulatory Flexibility Act or RFA. The RFA requires EPA to go
through the common-sense process of assessing how its rules
will affect small entities and whether there are less
burdensome ways to meet their objectives.
Instead of complying with the law and getting input from
small businesses through formal panels and analyzing small
business impacts, the EPA has ducked these rulemaking
requirements.
Unfortunately, small businesses won't be able to duck the
power plant regulations or ``Waters of the United States'' rule
once they are finalized. They are being required to comply with
the rules, pay the costs, and face the consequences.
While all small businesses want clean air and clean water,
they also want rules that are very clear and rational. Small
businesses want to know what they will be required to do, what
the costs are expected to be, and how their operations will be
affected. And last but not least, small businesses want to be
treated fairly in the rulemaking process.
I hope this hearing is going to be a wakeup call for the
EPA. Avoiding its obligations under the RFA is just simply not
acceptable. For the past year, the Committee has been working
to get the EPA to testify on this topic, and I very much want
to thank Deputy Administrator Perciasepe for joining us today
and I look forward to discussing this issue. And I, again, want
to thank you for being here.
And I yield to Ranking Member Velaazquez for her opening
statement.
Ms. VELAAZQUEZ. Thank you, Mr. Chairman.
A clean environment and economic growth go hand in hand.
Between 1970 and 2011, air pollution dropped 68 percent,
private sector jobs increased by 88 percent, and GDP grew by
more than 200 percent. This is not a coincidence as studies
continually show that environment stewardship is not only good
for our families, but also for our businesses.
Today, the EPA plays a vital role protecting public health
and safety by implementing a vast array of environment laws,
which in turn support our economy. Through its implementation
of the Clean Air Act, we have seen significant improvements in
our nation's air quality. In a given year, enforcement of the
Clean Air Act has saved 160,000 lives, prevented 1.7 million
asthma attacks, and stopped 13,000 heart attacks. It is
estimated that 13 million missed workdays are prevented thanks
to the cleaner air we enjoy, boosting economic productivity.
We have also seen similar benefits from the EPA's
enforcement of water regulations. Since the enactment of the
Clean Water Act, billions of pounds of pollution have been kept
out of our waterways, doubling the number of safe areas for
swimming and fishing. As a result, Americans are healthier, our
waterways are being remediated, and industries like tourism,
fishing, and recreation, which are dominated by small
businesses, are seeing greater opportunities.
While it is fair to say that these outcomes are positive
and that EPA is justifiable in pursuing such goals, the agency
must always be mindful of how new rules and regulations impact
our nation's small firms. To this point, our committee has
already examined several EPA regulations and the agency's
obligations under the Regulatory Flexibility Act.
What these hearings have shown is that the small business
impact can vary from rule to rule. When it comes to electricity
generation, it is clear that the direct costs are borne mainly
by large utilities. However, with regard to the discharge of
certain chemicals into the water, small businesses and farms
are likely to bear more of the actual costs associated with the
regulations. Yet, EPA determined neither rule will have enough
of an economic impact on small firms to trigger RFA analysis.
During today's hearing I hope to hear how the EPA is
implementing its obligation under the Regulatory Flexibility
Act, as well as conducting outreach to small firms. Perhaps
most importantly, I want to know how it determines not to meet
the full requirements of the act. There is no doubt that small
businesses want to protect our environment and should in many
regards be an ally of the EPA. Not only are they leading the
way when it comes to environmental technologies, but they can
also help the EPA craft regulations that promote clean air and
water without overburdening the industry.
It is my hope that today's hearing will help bridge the gap
between the EPA and the small business community, resulting in
a cleaner environment and a stronger economy.
With that, I thank EPA Deputy Administrator, Bob
Perciasepe, for his participation today, and I yield back the
balance of my time. Thank you.
Chairman GRAVES. Thank you.
In 2009, the Honorable Bob Perciasepe was appointed by
President Obama and confirmed by the Senate to serve as the
Environmental Protection Agency's deputy administrator, and for
nearly four decades he has worked on environmental issues from
both within and outside the government. Mr. Perciasepe
previously served as the head of EPA's water office and later
its air office, and prior to becoming deputy administrator, he
was the chief operating officer for the National Audubon
Society. Mr. Perciasepe has also served as Secretary of
Environment for the State of Maryland.
Director Perciasepe, thank you for taking the time to be
with us today, and your written statement is going to be
entered into the record. So please give us your oral statement.
STATEMENT OF HON. BOB PERCIASEPE, DEPUTY ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY
Mr. PERCIASEPE. Chairman Graves, thank you. Ranking Member
Velaazquez, thank you for those comments. And thank you for the
opportunity to testify and answer questions of the members.
I am here today to talk about EPA's actions on the
president's Climate Action Plan, and also under the EPA and
U.S. Army Corps of Engineers' recently proposed rule that would
clarify jurisdictional scope of the Clean Water Act.
Climate change is one of the greatest challenges of our
time, threatening human health, welfare, and our economic well-
being, and if left unchecked, will have devastating impacts on
the United States and businesses.
That is why President Obama laid out a Climate Action Plan
in June 2013, in which he directed EPA and other federal
agencies to take steps to mitigate the current and future
damage caused by carbon dioxide emissions and to prepare for
the anticipated climate changes that have already begun to be
set in motion.
EPA plays a critical role in implementing the plan's main--
one of its first pillars, which is cutting carbon pollution.
The president asked EPA to work with states, utilities, and
other key stakeholders to develop the plans to reduce carbon
pollution from future and existing power plants, the largest
source of carbon dioxide emissions in the United States.
In June of this year, the EPA proposed a Clean Power Plan
for existing plants. The plan is built on advice and
information from states, cities, businesses, utilities, and
thousands of people about the actions they are already taking
to reduce carbon dioxide emissions, and it aims to cut energy
waste and leverage cleaner energy sources by using a national
framework to set achievable state-specific goals, and it
empowers the states to chart their own customized path to meet
those goals.
The EPA's stakeholder outreach and public engagement in
preparation for this rulemaking was unprecedented. Starting
last summer, we have virtually met with thousands of people and
had hundreds of meetings with a broad range of stakeholders,
including small entity interests such as municipal and rural
electric cooperatives.
Now, we are in the second phase after the proposal of our
public engagement, and it has already begun. We have already
had dozens of calls and meetings with states and other
stakeholders, and more formal public process includes a comment
period that runs through October 16th of this year. Public
hearings are being held this week in Atlanta, Denver,
Pittsburgh, and in Washington, D.C.
In addition to the president's action plan, I also want to
take a minute to talk about the recently proposed
jurisdictional rule under the Clean Water Act. In recent years,
several Supreme Court decisions have raised complex questions
regarding the geographic scope of the Clean Water Act. And for
nearly a decade, members of Congress, states, local officials,
industry, agriculture, environmental groups, and the public
have asked our agencies--the Corps of Engineers and EPA--to
make the existing rules on the book more consistent with the
Supreme Court's rulings.
For the past several years, EPA and the Corps have received
input from the agricultural community while developing the
proposed rule. Using this input, the EPA and the Corps has
worked with USDA to ensure the concerns raised by farmers and
agricultural industry were addressed in the proposed rule. The
proposed rule does not change in any way the existing Clean
Water exemptions associated with agriculture, ranching, and
forestry activities.
EPA also sought wide and early input from representatives
of small entities, while formulating a proposed definition of
this term that reflects the intent of Congress consistent with
the mandate of the Supreme Court's decisions, and that was
reflected in our proposed rule.
EPA has prepared a report summarizing the small entity
outreach to date, the results of this outreach, and how these
results have informed the development of the proposed rule.
Since publishing the rule, the agencies have met many times
with small businesses and other entities. Most recently, the
agencies participated in an SBA-sponsored roundtable on July
21st. We look forward to continuing these efforts into the
future, and before we finalize the rule, and during the
remainder of the public comment period as we write the final
rule.
Thank you again, and I will be happy to answer your
questions, Mr. Chairman.
Chairman GRAVES. Thank you, Administrator. I appreciate it.
Administrator McCarthy recently came--was in Missouri, my
home state, and she was talking about obviously ``Waters of the
United States,'' and she made the statement that the concerns
of farmers and others--I want to make sure I say it right--that
the proposed rules and the concerns about the proposed rules
were silly and ludicrous, which I submit that the concerns of
farmers, and small businesses, and everybody out there are
certainly not silly or ludicrous. And I think a lot of these
concerns may have been identified if the EPA had complied with
the RFA. And that is my basic question here today, is why the
EPA did not convene small business advocacy review panels. That
is what it requires. They are formal panels, and you have said
your statement that you have gotten input from the Ag
community. I would like to know what that is. And when you say
small entity outreach, what does that mean in terms of--and why
did you all not do what the RFA does require? Because informal
outreach is not small business review panels.
Mr. PERCIASEPE. Under the RFA, we are required to--I am
sorry. I will get the hang of that in a second here, Mr.
Chairman.
Under the RFA, whatever the regulatory agency is, not just
EPA, is required to look at the small entities subjected to the
rule. And this is the interesting thing about the Waters of the
United States rule. It is a definitional rule. It defines where
the other parts of the Clean Water Act will actually apply. So
it does not directly impose any requirement on anybody if they
are not discharging pollution. So it does not directly impact
large businesses or small businesses in any direct way.
So the jurisdictional determinations of whether the Clean
Water Act would apply or not, and whether a state agency who is
implementing the Clean Water Act under the arrangements under
the law, would have to require an entity, small or large, to
get any kind of permit would only be related to whether or not
they were going to discharge pollution. And this regulation
does not regulate discharges of pollution, just where the
existing permit programs would have to work.
But also, more importantly, we are reducing the scope of
where the Clean Water Act applies from the current on-the-books
regulations that the Supreme Court was acting on in the last
decade, and so we are not expanding where permits would be
required.
And so when we looked at all of that together, we did not
see the applicability under the Regulatory Flexibility Act.
However, we did see a desire, as we almost always have, of
being able to engage all stakeholders, including small
entities, and we have had a process underway to do that. And we
will continue. We are planning more roundtables, as well.
Chairman GRAVES. When you say no discharge, discharge can
include dirt and sand runoff. Water, rainwater.
Mr. PERCIASEPE. Rainwater is not a pollutant.
Chairman GRAVES. Well, when it interacts with dirt and sand
and you are carrying dirt and sand, that is considered a
pollutant by the EPA.
Mr. PERCIASEPE. It would have to be--let me just be clear.
The jurisdiction of the Clean Water Act is where the existing
laws and regulations would apply, not in any new requirement.
So if you have to get a permit now, you would have to get a
permit under this. But if you do not have to get a permit now,
most likely you will not need a permit under this. If you plow,
plant, and harvest, walk cows across a field, all these other
things that you do in normal conduct of agriculture, if you do
that now, you will be able to do that under this rule without
any additional requirements from EPA or the Corps of Engineers.
Chairman GRAVES. We go back to my original question. Before
we do, you did say that you are reducing the scope in terms of
the Clean Water Act, did you not?
Mr. PERCIASEPE. Reducing.
Chairman GRAVES. In your economic analysis, the EPA's
economic analysis, you say there is a 3 percent increase in
jurisdiction.
Mr. PERCIASEPE. So the existing regulations were done in
the 1970s and modified in the 1980s, and they have a very broad
definition of what waters of the United States are. And
essentially, we are asking field biologists to go out and
determine whether any place on the landscape where water may be
running has some impact downstream or on interstate commerce.
That is what the current--the Supreme Court said we cannot use
interstate commerce as a way to do this. It has to be based on
some kind of scientific basis. I think they use the term of art
``of significant nexus.''
Chairman GRAVES. Significant nexus.
Mr. PERCIASEPE. So when we went back and looked at 20,000
different determinations that were done in the last five years,
and we applied it as strictly as we could, we saw somewhere
where the applicability would go away, and we saw some where
they had made the wrong call on the ground, even with the old
regulations. So we were being conservative and said this looks
like it could increase the amount of positive determinations
for jurisdiction by 3 percent. But the existing regulation is
much more expansive than that and has not been applied
completely uniformly around the country. So this will actually
constrict that.
Chairman GRAVES. Well, why did the EPA not do small
business, you know, the formal small business advisory review
or advocacy review?
Mr. PERCIASEPE. Well, we did not do it because--and it is
not that we did not want to talk to small businesses, but we
did not have the formal panel because the panel is for the
direct impact on a significant number of small entities--a
significant impact on a substantial number of small entities.
The direct impact is not here from this rule. The impact, if
any--and we think there will be not much, if any--is from the
existing regulations that would apply.
Chairman GRAVES. So what you are saying is that you
determined, or the EPA determined that there was not going to
be an impact so you did not have to comply with the RFA, which
is the process of determining if there is any impact?
Mr. PERCIASEPE. Well, we went through that analysis.
Chairman GRAVES. You are supposed to get input from small
businesses to help make that determination.
Mr. PERCIASEPE. Yes. I believe we are required to lay out
our rationale for what I just said in more detail in the
proposed rule.
Chairman GRAVES. Well, I think this is, you know, is far-
reaching. In fact, the term navigable waters is used some 80
times in the Clean Water Act, and when you come back and you do
something as so far-reaching and we use new terms like
``significant nexus'' or in one of the expansions of this, too,
is now a jurisdictional rate, a water that is adjacent to a
jurisdictional water, which I do not even know what that means
in terms of how expansive that could be. That could include
anything. And it comes back to, as well, when you are making
that determination on discharge or what that significant nexus
is, that is an extraordinarily subjective determination.
Obviously, going to be made by the EPA. I think with the impact
that is out there with this, you know, it really bothers me
that you all determined that this is not going to have an
impact because we believe it does, you know, in a big way. And
to say that we do not have to comply with the RFA because we do
not think there is an impact I think is wrong.
I have called on you all to withdraw this rule. I am asking
again. I think the EPA needs to withdraw this rule and go
through the process the way it should be gone through and
follow the law. And I am very disturbed by that. And I am very
disturbed by some of the things that have been brought out just
now. I was not expecting some of your answers.
With that, I will turn to--I will have some other questions
later but I will turn to Ranking Member Velaazquez.
Ms. VELAAZQUEZ. Thank you, Mr. Chairman.
Deputy Administrator, the Clean Power Plan provides states
with some flexibility to meet emissions reduction goals as they
see fit. What happens if states fail to submit their plan by
the deadline or EPA concludes a plan is not satisfactory?
Mr. PERCIASEPE. It is our full hope and aspiration that
that will not happen. That is why we are spending a lot of time
with every state. We have tailored this rule so that it is
tailored for every state, and we are meeting with every state
to try to work through how they can make their plan successful.
So, you know, the law has provisions in it that when states
fail to do plans under the Clean Air Act, the EPA has the
authority to propose a plan. We do not want to do that, and
that would not be our objective.
Ms. VELAAZQUEZ. Okay. In your testimony, you highlighted
that many industries, including agriculture and forestry will
continue to be exempt from most permitting. Do you expect the
new rule will necessitate additional industry exemptions?
Mr. PERCIASEPE. You are talking about the water rule?
Ms. VELAAZQUEZ. Yes.
Mr. PERCIASEPE. Yes. Well, under the Clean Water Act,
agricultural activities are exempt from the rule--from the
jurisdiction of the Clean Water Act, so that even if a water is
jurisdictional under the proposal, if you are doing
agricultural activities, you are exempt. You do not need to
comply with any permitting processes, and we are not changing
any of that.
One of the things we have tried to do is clarify issues
that farmers have brought up to us concerning ditches, where
they may do some ditching to drain some upland areas when it
rains, or even industry may do some on their industrial lot. Or
some ditches at the side of highways. For the first time, we
have never made it clear that those are not jurisdictional.
Those would not be under the jurisdiction of the Clean Water
Act.
Ms. VELAAZQUEZ. Okay, Deputy Administrator, I guess you
understand by now that there is frustration in this Committee
regarding the fact that we have the Regulatory Act that would
allow for agencies to compel or create a panel review process
so that it will give a voice to small businesses. And I think
that if you do that, the agency wins and small businesses also
win because you will issue better regulations when you have
input from small businesses. And small businesses will be more
satisfied because they feel that you have been able to listen
to them. I do not know why the reluctance. I just do not
understand how you conclude or come to the conclusion that
there is no direct impact on small entities because you have
not provided us the process upon which you arrived to that
conclusion.
Mr. PERCIASEPE. Well, certainly, I want to be able to
provide that to the Committee, and we will endeavor to do that.
But whenever we do a rulemaking and we make a decision in our
proposal that the direct impact--there may be indirect impacts,
but the direct impact is not from the EPA rulemaking, then the
law prescribes that that does not require a panel to be set up.
But I want to be clear. That does not mean we should not reach
out to small businesses.
Ms. VELAAZQUEZ. And I understand you did.
Mr. PERCIASEPE. And work with them.
Ms. VELAAZQUEZ. I understand you did.
Mr. PERCIASEPE. And we did.
Ms. VELAAZQUEZ. Right? But my understanding is that the
outreach took place three years ago and the language now is
different.
Mr. PERCIASEPE. On the water?
Ms. VELAAZQUEZ. Yes.
Mr. PERCIASEPE. Yes. We had a whole bunch of sessions a
couple of years ago when we were working on guidance. People
told us not to do a guidance, do regulation. We have proposed a
regulation, which was built on some of the work we did back at
that point. But since that time we have been working with SBA
to do roundtable discussions. And as I mentioned, we had one on
July 21st and we are planning to have more before we would
finalize the rule. Roundtable discussions with small
businesses.
Ms. VELAAZQUEZ. So will you please share with us what you
learned from that SBA roundtable?
Mr. PERCIASEPE. Well, on the water side, believe it or not,
we are learning that small businesses really want clean water,
and it is really becoming clear. In fact, there was a recent
poll done by the American Sustainable Business Council that
found that 80 percent of small business owners want protection
similar to what we are talking about; that 71 percent said
clean water is necessary for their businesses.
But we are also finding that they want to be clear when
they are in, when they are out of that jurisdiction. And so one
of our objectives is to take the existing regulations, which
are--and see, one of the issues we have is people have not
looked at those old regulations back in the 1970s and 1980s for
a long time, and so when we put out a new one that is trying to
replace it, they are only looking at the new one, and the old
one is even vague. It is very vague. You know, downstream,
interstate commerce, it is not a scientific principle, so we
are trying to pull it back into a more defined place to provide
that increased certainty, and that would be our objective, and
we are hoping to get more comment on that.
Ms. VELAAZQUEZ. Thank you.
Chairman GRAVES. To clarify real quick, because you keep
bringing up the exemption, the Ag exemption, but that is only
section 404, dredging. There is no exemption for Ag under
section 402.
Mr. PERCIASEPE. If they are discharging pollution, like
from a point source of solution.
Chairman GRAVES. Okay. That can include, again, rainwater.
Mr. PERCIASEPE. If it is runoff rain, it is nonpoint source
pollution and it would not be covered under section 402. It
would actually have to be in a pipe and be something that they
are discharging, and Congress in 1987 asked that large animal
feeding operations that discharge into a point source would be
covered under 402. That is in the 1987 Clean Water Act
amendments.
Chairman GRAVES. Mr. Luetkemeyer?
Mr. LUETKEMEYER. Thank you, Mr. Chairman.
Administrator Perciasepe here, I want to thank you first. I
know that one of the things I am working on is the proposed
rule that is out there with regards to wood burning heaters. I
have offered a bill to stop the nonsense of what you are trying
to do, and I understand that there is some discussions going on
between you and industry folks which I am very thankful for,
and I hope that proceeds. I understand the need for conformity
across the spectrum of this, but to go down the direction that
we were going down there is pretty problematic for me. So I
thank you for the willingness to work with industry.
With regards to the other issues before us today, it is
stunning to me when you make your statements that you did not
see the effect on small business from trying to define a word
in the law. To redefine or clarify is going to have dramatic
impact. When you say, if you just define the word ``customer,''
if you redefine that suddenly you have from a very small group
of people to a very large group of people. To take the word
``navigable'' out of this is unbelievable to me. And to not
then go through the process of checking out the--doing the due
diligence and the small business report and analysis before
this is either extremely naiive and incompetent or it is
arrogance in its highest to be able to flaunt your authority by
ignoring the laws, the rules, the process, the procedure. This
is unacceptable. Absolutely unacceptable, especially whenever
you look at the fact that within this law there is also the
word ``hydrologically connected,'' which means that all the
waters, whether they are above ground, below ground, wherever,
they are hydrologically connected, and the rain situation, it
connects everything. This is extremely important. Extremely
important. I cannot stress it enough, especially for rural
parts of our country. I offer you an opportunity to discuss it.
Mr. PERCIASEPE. Well, thank you for that question. You
know, you are getting at the crux of the issue under the Clean
Water Act, and we have to look at the body of everything that
has been going on, not just old rulemakings of the Corps of
Engineers and EPA, but also the Supreme Court rulings and what
they have been telling us to do. And they have consistently
been clear that it is not just navigable in the traditional
sense. Particularly when you are dealing with clean water, the
stuff that flows into the navigable, if it is polluted, it will
pollute the navigable. And so everybody from Justice Scalia to
Justice Kennedy have made it clear that it is more than just
the navigable. It could be seasonal. I think that is a quote
from Justice Scalia. Justice Kennedy uses the words
``significant nexus.''
And to go back to your question, and I think this, Mr.
Chairman, may get at some of your questions, yours as well,
significant nexus is a new thing that the Supreme Court gave
us. So we are trying to find out the purposes of the executive
branch putting out a proposed regulation, and I have dicta here
Chief Justice Roberts telling us to do these regulations.
Just one more second. I promise.
So nexus is definitely hydrology, as you just pointed out.
And what is the connection? Well, you could make the argument
as the chairman made that rain falling is connected somehow.
And so one of our jobs in this rulemaking, and one of the
things that we are most interested in trying to get more input
on, is how do we define significant? Everything might be
connected but it is not all significant. So back in the old
regulation it said if it had any impact, probable or any impact
on downstream interstate commerce, what we are trying to use is
the science of hydrology and say it has to have certain
characteristics that are identifiable by a hydrologist that
there is enough flow in that water course that it is frequent
enough, and enough that it creates these characteristics on the
landscape. Otherwise, it is not significant. So we have tried
to do that in this rule.
Mr. LUETKEMEYER. You just made my point though, sir, of why
did you not have--why did you not go through the rulemaking
process that you are required to? Because you just admitted it
is a tremendously impactful situation you are discussing here.
And you do not think it is not going to impact small businesses
when you just said it is huge. You have got the Supreme Court
involved in trying to define things and sort of direct you in
some of your activities. And it is not worthy of going through
the process that you are required to do, to go through and
figure out the impact on small business? That is what the chair
was talking about and what this hearing is all about today.
Mr. PERCIASEPE. And we are working with small businesses
and with the Small Business Administration.
Mr. LUETKEMEYER. Yeah, but you just talked about how
important it was and how big a problem it is, and yet now we
still did not go back and do what you were supposed to do,
which is determine the impacts based on the defects of it.
I see my time is over. Stunning. Absolutely stunning.
Chairman GRAVES. Mr. Tipton?
Mr. TIPTON. Thank you, Mr. Chairman.
I would like to be able to submit for the record a letter
from the Waters Advocacy Coalition. It is signed by 39
different organizations, among those the American Farm Bureau,
the American Gas Association, Foundation for Environmental and
Economic Progress, National Association of Home Builders,
National Pork Producers Council, many others. The basic content
of the letter is objecting to the insufficient analysis offered
by the EPA on the impacts that this rule will have.
Chairman GRAVES. Without objection, submitted.
Mr. TIPTON. Thank you.
Mr. Perciasepe, I am sorry.
Mr. PERCIASEPE. Bob.
Mr. TIPTON. Okay, Bob. As the letter that I am just
referencing from the Waters Advocacy Coalition is noting, the
agency certified the Waters of the United States rule as one
that will not have significant economic impact on a substantial
number of small entities, yet the agency did not provide any
factual basis for that certification as required under the
RFAs. Did the EPA simply fail to do this because a factual
basis did not actually exist?
Mr. PERCIASEPE. We provided an analysis to make the
determination that the rule itself, looking at direct impacts,
which is what we are required to do under the RFA, would not
have a significant impact on a substantial number of small
entities.
Mr. TIPTON. What do you qualify is a substantial number?
Mr. PERCIASEPE. Well, it is more the direct impact than the
number.
Mr. TIPTON. So we do not even know what the number is when
we are talking about who is going to be impacted?
Mr. PERCIASEPE. Well, we are not expanding the jurisdiction
of the Clean Water Act. So any small entity that is currently
covered by the Clean Water Act will continue to be covered by
the Clean Water Act. We are not making more of them covered.
Mr. TIPTON. Actually, you are saying not making more
covered, but in your testimony you stated that people want to
be clear whether they are in or out of jurisdiction, but under
the determinations you are making you clearly can expand
jurisdiction.
Mr. PERCIASEPE. But that is not what we are proposing. We
are proposing to not add any new waters to what is covered in
jurisdictional. We are trying to exclude certain things.
Mr. TIPTON. Is there connectivity between all waters?
Mr. PERCIASEPE. There is, but they are not all significant.
Mr. TIPTON. So does that, in fact, give you complete
control?
Mr. PERCIASEPE. They are not all significant and we make it
clear in the rule that they are not all significant.
Mr. TIPTON. What is significant?
Mr. PERCIASEPE. We have defined some hydrologic
characteristics that would make a water significant.
Mr. TIPTON. What are they?
Mr. PERCIASEPE. In the science of hydrology, if you look at
a flowing area, whether it is flowing all the time----
Mr. TIPTON. Flowing year round?
Mr. PERCIASEPE. I said whether it is flowing
intermittently----
Mr. TIPTON. What is intermittently?
Mr. PERCIASEPE. Not all year round.
Mr. TIPTON. Not all year round. So it could be 10 minutes?
Mr. PERCIASEPE. Well, let me--it could be enough that water
flows there frequently enough----
Mr. TIPTON. What is frequently?
Mr. PERCIASEPE. All right. You are not going to let me
answer?
Mr. TIPTON. No, I am just trying to get down to the actual
definition because the arbitrary nature of this rule----
Mr. PERCIASEPE. It is not arbitrary, sir. And if you let me
answer I can give you some clarity.
Mr. TIPTON. Go ahead.
Mr. PERCIASEPE. In the science of hydrology, you can look
at a flowing--a depressed area where water would flow, whether
it flows full-time or part-time--let us use those plain English
words--it will exhibit characteristics on the ground. There
will be a bed. There will be banks. There will be an ordinary
high water mark. These are things identifiable to hydrologists.
And if you do not have those characteristics, then there is not
enough frequency of flow or volume of flow that would make it
jurisdictional under the Clean Water Act. That is what we
propose. That is limiting to anything that might have an impact
downstream to interstate commerce.
Mr. TIPTON. What you have just described to me--I live in
the southwestern United States, in Colorado--we get one
rainstorm, and with the lay of our land, you could have a high
water marked caused by a 10-minute flow that then disappears.
So under what you are describing to me, a 10-minute flow that
happens once a year then becomes----
Mr. PERCIASEPE. An ordinary high water mark is not
something from being wet 10 minutes ago. It is something that
can be seen on the rock in terms of debris or discoloration of
the rock.
Mr. TIPTON. Or a cut in the bank of dirt?
Mr. PERCIASEPE. Erosional features are not covered.
Erosional features. We excluded those.
Mr. TIPTON. I would like to be able to move on just a
little bit here and move in a little different direction.
If you put out a rule under EPA, do you expect it to be
followed?
Mr. PERCIASEPE. Well, yes.
Mr. TIPTON. You do? Should you comply with the RFA and with
NEPA?
Mr. PERCIASEPE. Yes, we do.
Mr. TIPTON. You do? So is it appropriate right now under
section 104 of the existing Clean Water Act that both
retroactively and preemptively you are shutting down projects
before determinations have been made under NEPA and the RFA?
Mr. PERCIASEPE. I cannot answer that question because I am
not sure what you are----
Mr. TIPTON. Are you preemptively shutting down projects
right now based off of the proposed rules, saying that you
cannot proceed?
Mr. PERCIASEPE. We have not done that.
Mr. TIPTON. What about--I am sorry?
Ms. VELAAZQUEZ. They have not issued the rule.
Mr. TIPTON. But we have got a proposed rule.
Mr. PERCIASEPE. Right. But we have existing regulations
that are more expansive than the proposed rule.
Mr. TIPTON. Okay. You know, up in Alaska, I just read--is
it the Prebble Mine? Is that right? Pebble Mine?
Mr. PERCIASEPE. Bristol Bay.
Mr. TIPTON. Crystal Bay. Have you shut that down before the
analysis has been done?
Mr. PERCIASEPE. Our regional administrator made a finding
that is out for public comment.
Mr. TIPTON. Does that comply with NEPA?
Mr. PERCIASEPE. There has been no action taken on that.
Mr. TIPTON. No action. So it is not allowed to move forward
until the action takes place?
Mr. PERCIASEPE. They can do whatever they want while that
action is under consideration. And that action is to look at an
area of water that we would not want to see discharge into.
Mr. TIPTON. Okay. Thank you, sir. I do not know if we are
going to have a second round. I am way over time, Mr. Chairman.
Chairman GRAVES. We can.
Mr. Collins?
Mr. COLLINS. Thank you, Mr. Chairman.
Mr. Perciasepe, I have got to give you credit. I think you
knew you were coming into the lion's den today and here you
are. So I do give you a lot of credit. It is hard to defend the
indefensible. And that is what your agency has sent you here to
do.
And for full disclosure, Mr. Perciasepe and I participated
in a hearing a week or so ago on this very same issue on the
Science Committee, and I will admit I concluded that hearing by
saying to Bob that the public does not trust EPA. Farmers do
not trust the EPA not to overreach. Congress does not trust the
EPA. And at that point in time I pointed out the rule should be
withdrawn, plain and simple and the EPA should start over.
What we had in our Committee hearing in Science was we kept
hearing words like confusion, uncertainty, misunderstanding,
clarification throughout that hearing, and this was democrats
and republicans alike. And I would like to also point out we
all know about gridlock in Washington. There is only one agency
that unites democrats and republicans, and that is distrust of
the EPA. Your agency has united us where it is very hard to do
so.
Ms. VELAAZQUEZ. Please do not talk. Do not represent me.
Okay?
Mr. COLLINS. Okay. Well, here is what I can say factually
to our ranking member. A majority of Congress, a majority of
Congress, 240-plus members, republicans and democrats signed
the letter that I authored to the EPA saying we do not trust
you; withdraw the rule. That was a majority of the members of
Congress. And your agency has continued to disrespect Congress,
to go down your own road, and again, continue in this
rulemaking when a majority of Congress--democrats and
republicans--and on the Science Committee, the harshest
questioning came from the democrat side about this particular
rule. And I just came from a hearing in Science on the Clean
Air Act and the war on coal. And a former Obama administrative
official from the Department of Energy summed up the EPA this
way, to paraphrase, the arrogance of the EPA is beyond pale.
The Department of Energy was not legitimately asked to
participate in the sum of this rulemaking. And in fact, he
called it a political agenda by the administration and the EPA.
This is a former Obama administrative official less than two
hours ago.
So my question is very simple. Given the facts, the
majority of Congress has asked you to withdraw this rule, why
will the EPA not withdraw the rule, start over? There is no
rush. You are not under a deadline. There is no judicial
deadline. What is the harm in listening to Congress and
withdrawing this rule, clarifying all the misunderstandings and
confusion and everything else, and come out with a clean rule?
Why will the EPA not do that? Or will you do that?
Let me start with will you withdraw the rule? Yes or no?
Mr. PERCIASEPE. The agency----
Mr. COLLINS. Yes or no?
Mr. PERCIASEPE. No.
Mr. COLLINS. Okay. Why not, given that Congress has asked
you to do so?
Mr. PERCIASEPE. You know, you all have put the agency in a
very difficult situation. We are trying to improve the
situation out there given the Supreme Court constantly----
Mr. COLLINS. But let me go back to why will you not
withdraw the rule and start over? What harm is there in
withdrawing the rule and starting over when a majority of
Congress is on the record asking you to do so, republicans and
democrats? What is the harm in doing that and do the RFA? What
is the harm? Is there any harm? Is there something we do not
see?
Mr. PERCIASEPE. We continue with the uncertainty that
everybody----
Mr. COLLINS. What is the harm in withdrawing the rule?
Mr. PERCIASEPE. The harm would be in maintaining the
uncertainty that currently exists, and we are not going to--we
are going to continue to try to solve that problem. This is
just a proposal.
Mr. COLLINS. So, again, let us just be clear. You do not
care that a majority of Congress----
Mr. PERCIASEPE. I do care.
Mr. COLLINS.--who sets the laws----
Mr. PERCIASEPE. I do care.
Mr. COLLINS.--has asked you to withdraw the rule?
Mr. PERCIASEPE. I do care very much.
Mr. COLLINS. Then why do you not withdraw it?
Mr. PERCIASEPE. Because I need to fix the rule.
Mr. COLLINS. No, you need to withdraw the rule. Congress
has asked you pointedly, withdraw the rule. You have just said
no. There is no legitimate reason. There is no timing. There is
nothing but the arrogance of the EPA.
Mr. Chairman, I yield back.
Mr. PERCIASEPE. You know----
Chairman GRAVES. Go ahead.
Mr. PERCIASEPE. I mean, I have a Supreme Court Chief
Justice----
Ms. VELAAZQUEZ. That was my question.
Mr. PERCIASEPE. Who is saying why do the agencies not do
this?
Ms. VELAAZQUEZ. Yes.
Mr. PERCIASEPE. And so, you know, there are three branches
of government. I have got one branch who wrote me when I was
the acting administrator saying please do a rulemaking. Now I
have that branch saying maybe we should withdraw it. I have
another branch of the government--you know, I am going right
back to the Constitution here. I have another branch of the
federal government saying when are the agencies going to get
their act together and do a rulemaking? So, I would propose
that it would be in everybody's interest for us to take the
comment, get a----
Chairman GRAVES. I just thought it would be in everybody's
interest for us to take the comment----
Ms. VELAAZQUEZ. Would the gentleman yield?
It is kind of cynical. And look, I am a member of this
committee for 22 years. I have been fighting the
administration, whether republican or democrat, when I feel
that things are not done right on behalf of small businesses.
But I have to say that when it comes to repealing Obama Care,
the Supreme Court is the law of the land. When it comes to the
issue of water, the Supreme Court, is telling them that they
have to address the issue. There's just no winning in this
house.
Chairman GRAVES. Just to clarify, was there a judicial
deadline? I just ask to clarify. Was there a judicial deadline?
Mr. PERCIASEPE. No, sir.
Chairman GRAVES. Mr. Schweikert?
Mr. SCHWEIKERT. Thank you, Mr. Chairman.
I would like to submit to the record, from a roundtable we
held in Arizona about a month and a half ago, the transcript.
Chairman GRAVES. Without objection.
Mr. SCHWEIKERT. Thank you, Mr. Chairman.
Mr. Perciasepe, and from future--from now known as
Administrator Bob. How is that?
Mr. PERCIASEPE. Deputy Administrator Bob.
Mr. SCHWEIKERT. Excuse me, Deputy Administrator Bob.
And there is a rumor going around you are going to be
leaving us in a few weeks. Is that true?
Mr. PERCIASEPE. Yes, it is correct.
Mr. SCHWEIKERT. And this is how you celebrate your
departure, is hanging out with us?
Mr. PERCIASEPE. I know that I am trying to represent my
position of my agency and the president correctly here but I
view this as my solemn duty to do so.
Mr. SCHWEIKERT. And you were in front of the Science
Committee a couple of weeks ago, and as I even shared with both
my staff and even some of the members on the other side, I
thought you treated me particularly fairly because some of the
discussion, having spent a lot of time digging into this Waters
of the U.S. rule, it is complicated. But you do understand our
stress level, particularly for those of us from the arid
southwest, what some of these rules mean.
I am going to ask a favor of you.
Mr. PERCIASEPE. Yes, sir.
Mr. SCHWEIKERT. Because rumor is you are leaving in about
three weeks. In the Science Committee there was a request from
Mr. Webber from Texas specifically asking for any of the maps
that Fish and Wildlife--and I know you provided some of the
maps but we would really like to get our hands on any of the
mapping that was provided by Fish and Wildlife in helping sort
of design the impacts and the calculations, particularly
economic impacts of this rule.
Mr. PERCIASEPE. Okay. I think we may have provided those
maps earlier this week, but if not, I will absolutely make sure
that they go in there.
Mr. SCHWEIKERT. My notes may be a little bit----
Mr. PERCIASEPE. That is fine. You know, there is always a
running back and forth between all of us. But let me just say
that when I did look into that, I did discover that the maps
were created as far back as 2005, and they have been updated
since then. And they were not for regulatory purposes. But I
think all the maps that I think we had, if they are not at the
Committee now, they are going to be there this week.
Mr. SCHWEIKERT. Well, Deputy Administrator Bob, one of our
concerns is was the mapping also used in trying to do some of
the economic analysis and trying to understand its impact of
the rules?
There was one scenario that I left from last week, and I
really wanted to sort of walk through because you have personal
experience on this. When you were with--was it Sierra Club
before?
Mr. PERCIASEPE. No. No, sir. I was with the National
Audubon.
Mr. SCHWEIKERT. Oh, sorry.
Mr. PERCIASEPE. Bird conservation.
Mr. SCHWEIKERT. And one of the projects was in our Dry Salt
River.
Mr. PERCIASEPE. Yes.
Mr. SCHWEIKERT. And it is a beautiful project. You know,
the rehabilitation using the gray water.
Under this updated Waters of the U.S. rule, do you believe
you would have to get a 404 permit to do that project today?
Mr. PERCIASEPE. The actual restoration?
Mr. SCHWEIKERT. The actual retention, the movement, the
capturing of the water, the actual project, would that project,
from beginning to end, today require a 404 permit?
Particularly, also, some of the--there was some environmental
damage. I mean, old batteries in there.
Mr. PERCIASEPE. There was a brownfield site across there.
And I think as I mentioned to you I worked with the former
mayor of Scottsdale, Sam Campagna, to do that project. And it
may have gotten a 404 permit. I think it was the Corps of
Engineers that did that restoration.
Mr. SCHWEIKERT. Actually, I think they actually did some of
the water channeling. I think the project was separate. I am
reaching back in my mind.
Mr. PERCIASEPE. Well, down in the stream bed, where I have
actually gone birding and looked at where there has been some
water brought into there and some vegetation is now growing, in
that streambed, if there was a disturbance of the streambed----
Mr. SCHWEIKERT. It would have required, particularly
under----
Mr. PERCIASEPE. But up on--yeah.
Mr. SCHWEIKERT. Because there are two mechanics, and I have
only like 45 seconds to try to run this through. One was in
many occasions where we have actually tried to do good acts, my
fear is if this gets an expansive interpretation, all of a
sudden the good acts, I am now going to be required to get a
404 permit and go through those hoops. So in some ways is there
a potential we are creating a barrier to there?
And I am going to sort of leap and let you sort of combine
the answers. The last time I sort of walked through a scenario
of, okay, this is not about the water, it is about anything
that is a pollutant in the water. So our little scenario of the
dry wash behind my home, and I put fertilizer and plant and the
sediment, you know, and that 14 inches of rain I get a year
that all come on a Tuesday, it is running down the wash and
hits the Verde River, and the Verde River hits the Salt River,
and runs into the rehabbed riparian area, I use fertilizer. I
move dirt. It potentially got washed down that dry wash into a
running river. Did I potentially need a 404 permit in planting
my tree? And what is my exposure that may not be your intent
today, but the way this is drafted, there is a whole new cause
of action and future litigation that is coming at us that the
lawyers now get to spend the next decade moving that direction?
Mr. PERCIASEPE. Well, the quick answer is, without--and I
want to put the asterisks next to this. I would love to go to
your house and look at this project myself, but I would say it
is highly unlikely it is significant under the way we prepared
this rule. Whereas, the existing regulation, the law on the
books that the Supreme Court has been opining about, it has no
such clarity of what is significant. It just simply says
anything the field biologist thinks might have an impact
downstream.
Mr. SCHWEIKERT. Mr. Chairman--because I am way over time--
litigation exposure.
Mr. PERCIASEPE. Yeah. I mean, I think it would be less than
what currently exists.
Mr. SCHWEIKERT. Thank you, Mr. Chairman.
Chairman GRAVES. Mr. Payne?
Mr. PAYNE. Thank you, Mr. Chairman.
And I will follow Mr. Schweikert's lead and call you Deputy
Administrator Bob. And also, based on, hearing that you are
going to be leaving, probably after today you figure you should
have left three weeks and a day earlier. Well, we are going to
try to just get some questions answered.
There has been a lot of discussion about how the EPA's new
rule can negatively affect. Can you just list or describe ways
that it can positively affect small business?
Mr. PERCIASEPE. Well, I will just do something very quickly
here.
On the water definitional rule, or the Waters of the United
States, we firmly believe--and we heard this from the
discussions we have had with small businesses that (a) they
want to make sure that the law is interpreted correctly because
they want clean water; but second, they want to be able to have
clarity or the certainty of what is in and what is out. And you
know, we are struggling to do that. And that is our intent to
try to do that. And we will continue to endeavor in that.
On the Clean Power Plan rule that we have talked about a
little bit here, one of the things that EPA has laid out there
is that we want states to really seriously consider energy
conservation as an important part of what their plan might be.
And I know for sure that the whole sector of energy
conservation, whether it be smart grids or how to make things
better in your house is going to be very oriented to small
business opportunities.
Mr. PAYNE. As a matter of fact, through Homeland Security
and the Cyber and Security Bill, I have a piece of legislation
that was amended into that bill and to do a smart grid study
for upgrading the grid across the country and benefitting areas
that tend to have natural disasters and also looking at
manmade. So that is right up my alley.
Now, why are you having such a hard time getting small
business to understand these issues?
Mr. PERCIASEPE. Well, I think that we are spending a lot of
time with small business. I know that one of the issues the
Committee has is why not do that under the Regulatory
Flexibility Act, and it is because a lot of the impacts that
may or may not accrue, and a lot of the benefits that may or
may not accrue, depending on how these proposals unfold, will
be indirect impacts or indirect opportunities, and the
Regulatory Flexibility Act deals with direct impacts. So we are
not regulating somebody who does an energy conservation
project, you know, with a new kind of thermostat. We are not
regulating those people, but they may have an opportunity to
provide more business.
So we have reached out to small businesses. We have
roundtables underway with the SBA on the water rule. We are in
the process of finishing up our formal hearings this week on
the Clean Power Plan, and then we plan between now and when the
rule is finalized, and even way before that, to spend even more
time with small businesses, whether it is small co-ops or small
municipals, or even the indirectly impacted small businesses.
Mr. PAYNE. Okay. And, you know, around the whole issue
around the complexity of all of this, you know, the Clean Water
Act, you know, increase the amount of time it takes to make
jurisdictional determinations. In your estimation, how much
shorter time will these jurisdictional determinations take with
the proposed rules as opposed to the old ones?
Mr. PERCIASEPE. The current one, because of the way it is
written, requires almost every request for--or any project that
might be near water, for them to go through a process on a
case-by-case basis with the Corps of Engineers. The other thing
we are trying to do here, and the intent is to have enough
definition, so along the lines we were talking about earlier,
Congressman, that it would reduce the number of case-by-case
determinations and therefore make it more quickly apparent
whether they will have a jurisdictional issue or not.
But I also want to point out, if you are not going to
discharge pollution or put fill into the water, it would not
matter one way or the other.
Mr. PAYNE. Okay. Thank you very much, and I yield back.
Chairman GRAVES. Mr. Hanna?
Mr. HANNA. Hi, how are you?
Mr. PERCIASEPE. I am fine.
Mr. HANNA. Good.
You know, if you are trying to prove that you are trying to
make things easier, you are not really doing it. As you can
sense, the cynicism in this room is, at least on our side of
the aisle, profound. And I do not think that it is borne out of
some disinterest in the environment or anything like that. I
think for one thing, your former administrator, Lisa Jackson,
her comment that it was not her job, to paraphrase, to worry
about the economy, if you remember that, was, I think, a scary
thing to hear for everyone in the country. And the subjective
nature of the conversation here today and the notion that so
much about this has the potential to be arbitrary and
capricious and the concern that the farmers and builders and
contractors that I deal with daily--I was in construction for
many years--it is not in any way--and I am not surprised that
you said that businesses are concerned to have clean water, I
mean, who is not? That is really not much of a statement with
all due respect, or a surprise.
The problem your organization has is nobody believes you.
You have no credibility here because, frankly, people feel put
upon and the burden--I just went through almost 13 years in our
community to get a 404 permit through the Army Corps of
Engineers for something that was a relatively simple process
and it would appear to a lot of people I know, and I am sure
you hear this, too, that the EPA is now our enemy, not our
friend. That somehow everything has become so burdensome, so
complicated, so drawn out that the growth that we look for in
our economy, the opportunities that lie in front of people,
that you are an obstructionist organization and not someone who
ushers them through the process. And for people in business,
you know, every bureaucrat that walks through the door, it
feels like they are throwing an obstacle at their feet. And
here you are, one more, but yet you are bigger than all the
rest and you people assume that you can in some way interfere
in everything, everywhere, all the time.
And when I hear the definition of navigable waterways, you
know, and people want to believe--people are inclined to
believe that it means the water off their roof. So when you
explain that it does not, and I am just telling you what the
people I work for feel, they do not believe you, and they are
concerned. And if the concern seems disproportionate to your
intent, which I am listening to you, and I believe you are
earnest in what you are saying, you need to back up because
frankly the outcome that you desire is going to be pushed back
by this entire country, not because it is not an outcome that
we might all want and even agree on, but because frankly,
nobody believes you.
I wonder how you feel about that. Or if you even agree.
Mr. PERCIASEPE. Well, I have not, and nor does EPA do
polling to determine who believes us or who does not believe
us----
Mr. HANNA. But you do not have to.
Mr. PERCIASEPE. Let me just say what I believe. Okay?
I do not believe that most people do not trust EPA. The
polling I have seen, for what it is worth, back in the past by
others, show that people prefer EPA to be setting standards.
And, you know, but I do not have enough data on what every
person in the United States things about----
Mr. HANNA. No, but preferring to have them set the
standards is not the same as trusting them.
Mr. PERCIASEPE. Yes. So this trust thing is a problem,
particularly if Congress has it. This is not an idle problem,
and we need to work on that. And I am here today trying to
explain what our intent is, and to try to build a bridge.
Mr. HANNA. I appreciate that, but you are not going
anywhere with the presentation I see today. Backing up and
blaming the Supreme Court, or using them as a crutch, that also
is not helpful because at the end of the day this place has the
ability to do what it would like to see done. We have the
capacity to make mistakes here, to undo what you might regard
as good work and may very well be good work, but if you cannot
make us trust you in that regard, you are going to have an
outcome that you do not like and that potentially we do not
like.
My time is up. Thank you, Chairman.
Chairman GRAVES. Mr. Huelskamp?
Mr. HUELSKAMP. Thank you, Mr. Chairman. I appreciate that,
Deputy Administrator, for being here today. And if I have asked
a question that has been asked before, if you would restate the
answer, I would appreciate that.
One thing that many of my constituents are asking and I
share the same concerns as my other colleagues here, but trying
to understand the claim from the EPA administrator in Kansas
City a couple weeks ago, and similarly yours here, this would
provide more certainty compared to your current regulations.
Can you tell me if this regulation would allow the federal
control or regulation of ephemeral streams?
Mr. PERCIASEPE. It would make ephemeral streams
jurisdictional if they exhibit those hydrologic characteristics
that would be an indicator of significant and frequent enough
flow to be significant.
Mr. HUELSKAMP. Let me get the definition of what is
significant, and I have been through this at the state level.
Would this increase or decrease the amount of Clean Water Act
jurisdiction compared to current law or regulation?
Mr. PERCIASEPE. We believe it would reduce.
Mr. HUELSKAMP. It would reduce that.
Have any states suggested otherwise in their comments?
Mr. PERCIASEPE. I have not read the state comments yet.
Mr. HUELSKAMP. Have you read any comments about the rule?
Mr. PERCIASEPE. Well, the comment period is open until I
think October.
Mr. HUELSKAMP. You have not peeked at them a little bit
early?
Mr. PERCIASEPE. I have been out talking to some states.
Mr. HUELSKAMP. Have these states indicated that they
disagree with the assessment that it reduces jurisdiction?
Mr. PERCIASEPE. I have not heard that.
Mr. HUELSKAMP. Well, I will give you a clue. In Kansas, the
state of Kansas, the estimates are from our state, it increase
the jurisdiction by 400 percent--400 percent more jurisdiction
under the proposed rule. Instead of regulating 32,000 miles of
stream miles, it would increase that to 134,000 miles. How
could they be that wrong? You are claiming the jurisdiction
goes down. The state of Kansas actually lives there, and we
were a better environment. As a farmer myself I consider myself
the first environmentalist. How could they be so wrong in
misunderstanding of your rule?
Mr. PERCIASEPE. I would love to see their analysis and I
would love to get our staff to sit down with them and
understand why we see such a different situation. I know that
more than half the states already cover ephemeral streams
themselves. Including Kansas.
Mr. HUELSKAMP. Not under the Clean Water Act, sir.
The issue here also I want to ask about is navigable. Can
you describe or define navigable for the Committee, please?
Mr. PERCIASEPE. Navigable in the Webster Dictionary----
Mr. HUELSKAMP. No, in the Clean Water Act.
Mr. PERCIASEPE. In the Clean Water Act, navigable has been
defined by Congress as waters of the United States. That is
what the definition is in the Clean Water Act of 1972, and the
Supreme Court----
Mr. HUELSKAMP. No, navigable is an adjective. Not
describing the Waters of the U.S. It is a limit on the
jurisdiction of the Clean Water Act. It does not describe every
water of the U.S., sir. You are clearly wrong.
Mr. PERCIASEPE. Well----
Mr. HUELSKAMP. Can you define navigable? Because that is a
limit on the power.
Mr. PERCIASEPE. Navigable waters include waters that flow
into traditionally navigable waters that can have an impact on
the biological, chemical, and physical integrity of those
navigable waters.
Mr. HUELSKAMP. So navigable water is water that flows into
a navigable stream? So nonnavigable waters by that definition
become navigable?
Mr. PERCIASEPE. No. Waters of the United States----
Mr. HUELSKAMP. Waters of the U.S. do include nonnavigable
waters. Is that correct?
Mr. PERCIASEPE. Yes.
Mr. HUELSKAMP. Okay. So there is a distinction.
Mr. PERCIASEPE. They include the waters--the Clean Water
Act is looking at controlling water pollution. And controlling
water pollution, even if----
Mr. HUELSKAMP. The authority of the federal government is
limited to navigable waters.
Mr. PERCIASEPE. And controlling water pollution that could
enter it.
Mr. HUELSKAMP. Under navigable waters.
Here is a question for clarification. Water pollution
enters----
Mr. PERCIASEPE. From other streams.
Mr. HUELSKAMP. You believe this is going to bring some
certainty.
Here is a body of water in Western Kansas. It actually
rained once upon a time. This was a few weeks ago. Is this a
navigable stream?
Mr. PERCIASEPE. It is neither navigable or waters--or
jurisdictinoal under the Clean Water Act.
Mr. HUELSKAMP. You can guarantee me today that this will
not be under the jurisdiction of the EPA?
Mr. PERCIASEPE. I am just not going to go any further than
what I just said because that is just unfair. I would have to
go out and look at that, but it looks like wetness in a field
which would not be navigable--which would not be
jurisdictional.
Mr. HUELSKAMP. It might flow down the road ditch to a
navigable stream.
Mr. PERCIASEPE. It does not matter. It does not exhibit the
characteristics that I mentioned earlier, or the hydric soils
or the hydric vegetation. That is a puddle in a field and it
would not be covered.
Mr. HUELSKAMP. So you can absolutely guarantee me a puddle
in a field, a road ditch in western Kansas will not be
covered--guaranteed not covered under this new regulation?
Mr. PERCIASEPE. A road ditch that is not a channelized
stream would not be covered. Some road ditches actually are
channelizing a stream, but putting that aside, road ditches,
the vast majority of them are not going to be covered, not be
jurisdictional, and wet fields are not going to be
jurisdictional. They are not going to be jurisdictional.
Mr. HUELSKAMP. I yield back, Mr. Chairman.
Chairman GRAVES. Ranking Member Velaazquez.
Ms. VELAAZQUEZ. Yes. Mr. Chairman, I would like to ask
unanimous consent to submit for the record a report from the
American Sustainable Business Council that found that small
business owners are concerned about climate change--57 are
concerned about carbon pollution, 53 percent are concerned
about climate change, and 53 percent believe that climate
change will adversely affect their businesses.
Chairman GRAVES. Without objection.
Ms. VELAAZQUEZ. Thank you.
Chairman GRAVES. Mr. Luetkemeyer?
Mr. LUETKEMEYER. Thank you, Mr. Chairman.
Just a couple questions, sir. With regards to power plant
oversight, I know that apparently--correct me if I am wrong
here--it appears that the agency, when they figure the costs of
the rules and regulations in power plant rules, that they
considered it on a global scale. Is that correct? The cost
benefit on a global scale?
Mr. PERCIASEPE. Well, I am not exactly sure of the term
there, but when we look at----
Mr. LUETKEMEYER. Do you take other factors besides what
would we could consider domestic? Things that would affect only
the United States? Do you take into effect whatever cost
savings or costs otherwise may be affecting other areas of the
world? Our neighbors to the north, south, east, west?
Mr. PERCIASEPE. I do not know the answer to that. I am
going to say generally no, but here have been instances where,
obviously, we have cooperated with other governments, like
Canada on acid rain, where we have done joint work together.
But I would generally say that we were looking at the impact in
the United States.
Mr. LUETKEMEYER. Well, what I have been told is that you do
take into account calculating benefits on a global scale for
coal referenced rules, which have a dramatic impact on coal-
fired electrical generation plants, of which I have got a
couple in my district. In fact, one closed up as a result
partially of the rules that have come down. And I am just kind
of curious why you included the costs of savings or other
benefits of other countries over what should be, I would think,
only the cost benefits that would be for us domestically.
Mr. PERCIASEPE. I really apologize. I should know what you
are asking, but I do not want to guess. So if it is okay with
the Committee and the chair, I would like to research that----
Mr. LUETKEMEYER. Sure. We can follow up.
Mr. PERCIASEPE.--and provide the answer.
Mr. LUETKEMEYER. Sure.
Other than that, just one other concern. When you go down
the road with these different rules and regulations that you
are looking at, basically, the president seems to be trying to
implement carbon tax rules around the Congress by implementing
some of the rules through your agency. I think it is very, very
concerning. I think, you know, again, when you do this, you
need to go through the RFA process to find the effect on small
business, and it is very concerning to me that we are even
going down this road when you look at what Australia just did.
Australia implemented the carbon tax two years ago and found it
increased costs significantly, over 15 percent, and it affected
thousands and thousands of jobs, and they now have withdrawn
that. I think we need to be very careful down the road that we
are going down and we need to make sure we continue to adhere
to the process and the procedures that are in place which today
we are talking about, the Regulatory Flexibility Act. It is a
very, very important tool for analysis, not only for you but
for us, to make sure that the rules that you are putting in
place are something that we can go along with, that we believe
our constituents, our small businesses are having to live under
and would be beneficial to them rather than costing them.
Again, when you see what is coming out of other countries with
regards to the kind of power plant rule and regulation that is
being proposed, and they are backing off, it should give us
pause. And for certain, to be able to--I would think it would
be a red flag to make sure you adhere to the process of
procedures.
With that, if you want to respond, fine, sir.
Mr. PERCIASEPE. Sure. Just a couple of quick comments.
First of all, I want to be really clear to the Committee.
We believe that we should be looking at the impacts of all
different segments, whether it is small business or large
business. I just want to be really clear about that. And
somebody at EPA did make the statement earlier that it is not
in our job description--but it was not Lisa Jackson, I can
assure you that. It was not. It was a lower level EPA employee
who made a mistake. That is all I want to say. Made a mistake.
Mr. LUETKEMEYER. Now, to follow up on that, sir, before you
move on to your next comment, that is why it is important that
you do the RFA, because that affects the economic concerns that
we have. And when you have a comment like that, that gives us
pause.
I am sorry. Go ahead.
Mr. PERCIASEPE. So, there are two things. I want to make it
clear that we are not trying to implement a carbon tax or
anything like that here. The Clean Air Act gives us very
specific authority to look at sectors, and so in the last term
we did a light duty vehicle regulation that reduced the
greenhouse gases from light duty vehicles. We worked with the
Department of Transportation on that to make sure it aligned so
the automobile manufacturers only had one thing to implement
between the CAFE and the carbon rules. We reached consensus
with the automobile manufacturers. We had a process with the
small automobile manufacturers. We exempted them from the rule
completely. And then they came back to us and said, you know,
we want to be able to opt in if we are making really efficient
cars because we want to sell our credits to the other
automobile manufacturers. And so we actually have an opt-in for
small businesses in that rule. So I do not want you think we do
not really think about this.
And the two big carbon--so-called carbon rules that EPA is
working on--one was the automobiles, which is in the process of
being implemented now and has those kinds of provisions I just
mentioned, and the other one, which is the power plants, which
we have not implemented yet, which is going to be something we
are going to have to work out with states, where we are going
to be continually looking for ways that we can incorporate
ideas and opportunities like that to be able to deal with small
businesses, and we hope that many small businesses will
capitalize on some of the business opportunities as well.
But we do look at this. I want you to believe that and not
not trust us.
Mr. LUETKEMEYER. Thank you for your comments.
I yield back. Thank you, Mr. Chairman.
Chairman GRAVES. Mr. Tipton?
Mr. TIPTON. Thank you, Mr. Chairman.
I would like to associate myself with many of the questions
and comments of Mr. Luetkemeyer because one issue, and Deputy
Administrator, does it disturb you a little bit when you were
just talking about--and that is admirable that they were able
to achieve this, but some of the small car companies wanting to
be able to sell their carbon credits back, does it disturb you
when we talk about the sense of Congress--which created the
EPA, by the way--had rejected cap and trade? And effectively
now we are seeing it moving forward in a regulatory action?
Mr. PERCIASEPE. I missed----
Mr. TIPTON. I was just quoting you. You were just saying
that they wanted to be able to use their credits in regards
to----
Mr. PERCIASEPE. Oh, we always do this in our rules. In all
of our automobile rules. If one automobile manufacturer does a
better job of pollution control than others, they can move
those credits around between the automobiles. But they cannot
sell it to, you know, a power plant or vice versa. It is
inside--market mechanisms has been something EPA has used in
rulemaking going back to the early 1980s.
Mr. TIPTON. Yes, sir. I understand that. I guess my point
is Congress had rejected under a democrat administration cap
and trade.
Mr. PERCIASEPE. This is not a cap and trade program. This
is the ability to trade credits in between. But again, we have
been doing it since the 1980s.
Mr. TIPTON. And I think that is really part of the concern
is we see stepping stones to movement.
If we go back to water, when Secretary Salazar, secretary
of interior was intiating--were you familiar with the Blueways
program?
Mr. PERCIASEPE. No, sir.
Mr. TIPTON. Blueways was coming out of the Department of
Interior, which is effectively a precursor to the waters of the
U.S. And I would invite you or your successor to make sure that
they read the reports that were coming out of the Blueways
program, effectively citing pollutants coming from faraway
farmlands in the Midwest. And it effectively really goes to Mr.
Schweikert's point in terms of once water is put on the picture
that Mr. Huelskamp had shown you, we may not define that as
navigable, but as it flows down effectively, that backflow
becomes all navigable waters.
And that is really the concern people have is once you
start regulating, it does have impacts, and those costs that
are going to be associated with it. Through this Committee, we
actually have the empirical evidence that through regulatory
costs in this country right now, Americans are paying $1.8
trillion in regulatory costs. And no one is suggesting we get
rid of all regulations. But those are real costs.
Right now in Colorado, yesterday, you held EPA hearings,
and unfortunately, you held them in Denver. We sent two letters
to the director requesting that the hearing actually be held in
the impacted area over in Craig, Colorado, Moffat County in my
district. We received no response from the EPA. Would it be
appropriate when we are holding these hearings, and I think you
heard loud and clear the importance of these RFAs, to actually
go to the impacted communities rather than just going to urban
areas for hearings?
Mr. PERCIASEPE. The hearings are just one aspect of our
outreach, and we have tried to distribute them around the
country in different parts of the country so people have an
opportunity. Let me just say this categorically. EPA will meet
with anybody who wants to meet with us on this, and we are
going to reach out to virtually every state and the
constituencies in each one of those states, and we are in the
process of doing that.
Mr. TIPTON. Great. Can we get a hold of you, and you will
help facilitate with us for Director Jackson to be able to come
to Craig, Colorado, and we will meet with him?
Mr. PERCIASEPE. You tell me who it is they are meeting. I
will try to figure out----
Mr. TIPTON. We are going to be able to meet with community
members, with county commissioners, state legislators, the
impacted private entities in rural Colorado that are going to
impacted by proposed EPA rules.
Mr. PERCIASEPE. So we would want to work with the state of
Colorado because they are the ones who are going to have to
implement it.
Mr. TIPTON. And you will be willing to come to Colorado?
Mr. PERCIASEPE. I am willing to get on the phone and get
with the governor and try to figure out how we do that.
Mr. TIPTON. Great. We would love to be able to have you
come in. And I think when we are talking a little bit about----
Mr. PERCIASEPE. We will have a meeting. I do not know where
the meeting will be, but we will have a meeting.
Mr. TIPTON. I think that is part of the problem. We just
had rural Coloradoans had to drive four and a half, six hours
to be able to go to the meeting in Denver, Colorado. It is
important that when we are talking about outreach, I think not
to discard rural America because these are where the real
impacts.
And when we are talking about the states are going to have
to implement it, do you share with me some of the concern when
we are looking about some of the carbon credits? If you want to
be able to see blue skies and a coal-fire power plant, come to
Craig, Colorado with me. We will be able to see that. But the
concern that we are hearing, and these is out of senior
citizens that are on fixed incomes, young families that are
just trying to be able to get started, they are seeing taxation
via regulation to where those utility bills continue to climb.
Is this taken into consideration at all by the EPA?
Mr. PERCIASEPE. Our economic analysis shows that energy
bills will decline.
Mr. TIPTON. When?
Mr. PERCIASEPE. Between now and 2030, the energy bills
will----
Mr. TIPTON. If I am paying $100, it is actually going to go
down?
Mr. PERCIASEPE. Our national estimate--remember, we are
doing a national estimate--is that energy bills will decline 8
to 9 percent.
Mr. TIPTON. I would love to see that study.
Mr. PERCIASEPE. It is in our Regulatory Impact Analysis.
And we can point that out if the Committee would need to have
that.
Mr. TIPTON. Great. Thank you, Mr. Chairman. I yield back.
Chairman GRAVES. Mr. Collins?
Mr. COLLINS. I will be brief here.
In looking through some of the rules and use of
terminology, I think what seems to be bothering a lot of
people, words like significant. And here in the proposed rule
in the Federal Register it says for an effect to be significant
it must be more than speculative or insubstantial. So when we
use that word, is there any data behind that that would suggest
what that means?
Mr. PERCIASEPE. That is one of the things we are trying to
deal--I believe--I may be wrong, and somebody behind me may be
able to clarify--I believe that that is just the language that
the Supreme Court used and what we are trying to do with the
rest of the rule is actually try to put a boundary on that.
Mr. COLLINS. Yeah, this is actually out of the regulatory
text.
Mr. PERCIASEPE. We were probably writing that in there, but
Justice Kennedy's opinion. So, what we have done with the rest
of the rule is try to say, well, what would that be? And it
gets back to trying to do it on a scientific basis as opposed
to does it affect----
Mr. COLLINS. The problem is small business in trying to
adhere to something in reading through this, they are not going
to know where to take something using a word like significant.
So I guess I would conclude simply in saying--well, let me
also go to another point today. Too many times in Congress with
the public it looks like the EPA has a ``solution looking for a
problem.--So today in our Science Hearing on the coal plants, a
data point came out that said if the United States industrial
complex and the United States power generation complex produced
no CO2 whatsoever, none, they were all shut down, how would
that impact the amount of CO2 going into the atmosphere in the
world? And the answer was 2 percent. So here we are. So we
could shut down all the power plants, we could stop all of our
production that emits any CO2. The impact in the world is quite
insignificant, negligible, de minimis. Two percent is not going
to have an impact, not given what we are doing. So that is part
of the issue, and I say the frustration on our side is the need
for jobs, the growing economy, and then having the EPA
overreach for something that is not needed. Again, a solution
that is looking for a problem; a problem that does not exist,
certainly not that we could have an impact on.
So it was just interesting. I believe you admitted there is
a trust factor between the EPA and Congress, clearly. There is
a trust factor between our farmers. And I always have a saying,
do not bring me a problem without a solution. The EPA has a
real problem. Congress does not trust you. Farmers do not trust
you. The public does not trust you. So what is the solution? Do
not bring me a problem without a solution. It is a simple
solution. Withdraw the rule. Start over. Understand what you
have done wrong. Reach out. Study the small business. Do the
RFA. That would mean so much to I think this Congress and the
country for the EPA to say we were wrong. We got ahead of
ourselves. We admit that there is misunderstanding. We are
going to withdraw the rule, take all this into account. And
since there is no judicial deadline, we will move forward on
another day. We screwed up. Do you know what that would do for
your trust factor in Congress? It would take you a long way.
So all I would say, I know you are leaving, but for my two
cents worth, if you could convince your superiors to withdraw
this rule, your credibility would skyrocket in the EPA, and I
would suggest you seriously consider it.
I yield back.
Chairman GRAVES. Mr. Schweikert?
Mr. SCHWEIKERT. Thank you, Mr. Chairman.
Deputy Administrator Perciasepe, sort of a continuation on
a bit of the thought exercise here. Significant nexus.
Ultimately, I believe in your testimony, the discussion was
this rewrite, this update of waters of the U.S. has been driven
because of multiple Supreme Court rulings?
Mr. PERCIASEPE. Right. Keep in mind it is a definitional
rule, so it is defining something. We had it defined in the
1980s and the 1970s in a very broad way. The Supreme Court has
several times said you cannot use that approach. You need to
come up with a different approach.
Mr. SCHWEIKERT. And some of the significant nexus language
actually came out of the Supreme Court language?
Mr. PERCIASEPE. That is right.
Mr. SCHWEIKERT. I am going to ask you actually for a
personal opinion, and I know this is a little awkward, instead
of your hat as the deputy administrator, but you are leaving in
three weeks so you are allowed to have a personal opinion.
Mr. PERCIASEPE. I am a citizen of the United States.
Mr. SCHWEIKERT. Over the next decade, your personal
opinion, how much litigation is ultimately going to take place
in defining significant nexus? Because the regional
differentiation of that is incredible if you think about our
lives out in the desert southwest compared to other parts of
the country.
So where I am heading on this is your personal opinion, how
much litigation are we going to look at in just, once again, if
this rule goes into effect as written, in fixing these
definitions or tightening them up or politicizing them or
moving, what do we expect to see?
Mr. PERCIASEPE. You know, maybe it is sort of--and also a
little bit towards Mr. Collins's--who just had to leave--
answer, I can tell you that Gina McCarthy and Bob Perciasepe,
as long as I am here, but certainly my immediate supervisor or
boss, Gina McCarthy, want nothing more than to build
credibility and confidence in the Congress.
So from a personal perspective, we would hope that we would
be able to get out of the situation we have been in for 40
years with everything keeping going to the Supreme Court and
try to get that to stop. And at some point, you know, I do not
see--if we do nothing it will continue to keep going up there
and they will continue to keep----
Mr. SCHWEIKERT. But if you also do this, I mean, in many
ways the term ``significant nexus'' is a new term of art, and
now we have to define it.
Mr. PERCIASEPE. Right.
Mr. SCHWEIKERT. And is a significant nexus different in
Oregon compared to the desert southwest? Is it different----
Mr. PERCIASEPE. Yes.
Mr. SCHWEIKERT.--you know building that box. And where you
are hearing a lot of stress in our voices is for places like
Maricopa County, Arizona, you know, one of the third, fourth
most populous county in the country, we recycle every drop of
our water. Every drop of it. We think we do some of this
really, really well. Is there going to be litigation that is
being driven on another, you know, how water--the significant
nexus of water in Delaware and all of a sudden we find out that
the way we operate in our region, we are back in court having
to redefine for a definition that works for us.
In my minute and a half I have left, you actually just
touched on something. You have heard the credibility
discussion, distrust discussion. Could you share with
Administrator McCarthy two things from me if you have the
chance? One is stop giving speeches where you vilify us, where
in your language you say you are going to go after those of us
who have questions, that only real scientists are worthy. And
those are quotes from articles. You did not say them but the
administrator did.
And the second part of that is transparency. It is not good
enough to tell us what your study says. We need the data sets.
It is unacceptable to have proprietary data saying, well, we
hired a contractor to do it. If you are going to make public
policy, public policy needs to be done by public data. The
public deserves the right--right, left, activists, researcher--
to see the base data sets and model it. Because I think
actually some of the distrust comes from the inability to see
that baseline data and know you could stress it and reproduce
it.
So that is more of an editorial comment, but I actually
think it would take us a long ways to openness, transparency,
and rehabilitating the relationships between the agency and the
public.
Thank you, Mr. Chairman.
Chairman GRAVES. Thank you, Mr. Perciasepe, for coming in.
And I might suggest, because you have said on several occasions
today, you know, you are seeking input. You want to, and we
have been talking about credibility and transparency and you
want to hear from the business community. I would suggest that
you comply with the RFA. And why not do it voluntarily? Why not
go through the steps that are laid out? And help your
credibility out considerably and do it through the process,
because that is really what this hearing is about--is why the
EPA does not follow the Regulatory Flexibility Act, which is
what this Committee is all about. And it does require all
agencies, the EPA included, to conduct outreach and assess the
impacts of rules on small businesses. And hearing from those
small businesses early in the rulemaking process is going to
identify these problems that come up, and hopefully, as has
been pointed out, produce better solutions and better rules.
But unfortunately, EPA is not complying with the RFA. And the
result, it is confusing. It ends up badly crafted regulations
and you get into situations like you are in. But the Committee
is going to continue to engage with the EPA to make sure it
fully complies with the EPA or with the Regulatory Flexibility
Act.
And with that, I would ask unanimous consent that all
members have five legislative days to submit statements and
supporting materials for the record.
With that, without objection, that is so ordered.
And with that, the hearing is adjourned. Thank you.
[Whereupon, at 2:34 p.m., the Committee was adjourned.]
A P P E N D I X
Testimony of Bob Perciasepe
Deputy Administrator
U.S. Environmental Protection Agency
Hearing on EPA Actions Under the Climate Action Plan and Waters
of the U.S.
Committee on Small Business
U.S. House of Representatives
July 30, 2014
Chairman Graves, Ranking Member Velaazquez, members of the
committee: thank you for the opportunity to testify today on
EPA's actions under the President's Climate Action Plan, and on
EPA and the U.S. Army Corps of Engineers' recently proposed
rule which would clarify the jurisdictional scope of the Clean
Water Act (CWA), simplifying and improving the process for
determining waters that are, and are not, covered by the Act.
EPA Actions Under the President's Climate Action Plan
Climate change is one of the greatest challenges of our
time. It already threatens human health and welfare and
economic well-being, and if left unchecked, it will have
devastating impacts on the United States and the planet.
The science is clear. The risks are clear. And the high
costs of climate inaction are clear. We must act. That's why
President Obama laid out a Climate Action Plan in June 2013 in
which he directed EPA and other federal agencies to take
meaningful steps to mitigate the current and future damage
caused by carbon dioxide emissions and to prepare for the
anticipated climate changes that have already been set in
motion. The Plan has three key pillars; cutting carbon
pollution in America; preparing the country for the impacts of
climate change; and leading international efforts to combat
global climate change.\1\
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\1\ More information on the Climate Action Plan at: http://
www.whitehouse.gov/sites/default/files/image/
president27sclimateactionplan.pdf. While EPA is involved in many of the
Plan's efforts, including those addressing emissions of methane,
hydrofluorocarbons (HFCs), and other short-lived climate pollutants,
this testimony will focus on the efforts to reduce carbon pollution
from new and existing power plants.
EPA plays a critical role in implementing the Plan's first
pillar, cutting carbon pollution. Over the past our years, EPA
has begun to address this task under the Clean Air Act. Our
first steps addressed motor vehicles and, working with the
National Highway Traffic Safety Administration, resulted in
greenhouse gas and fuel economy standards for Model Year 2012
to 2025 light-duty vehicles, and standards for model year 2014
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through 2018 heavy duty trucks and buses.
Building on this success, the President asked EPA to work
with states, utilities and other key stakeholders to develop
plans to reduce carbon pollution from future and existing power
plants.
Power plants are the largest source of carbon dioxide
emissions in the United States, accounting for roughly one-
third of all domestic greenhouse gas emissions. While the
United States has limits in place for the level of arsenic,
mercury, sulfur dioxide, nitrogen oxides, and particle
pollution that power plants can emit, there are currently no
national limits on carbon pollution levels.
In September 2013, the EPA announced its proposed standards
for new natural gas-fired turbines and new coal-fired units.
The standards reflect the demonstrated performance of
efficient, lower carbon technologies that are currently being
used today. They set the stage for continued public and private
investment in technologies like efficient natural gas and
carbon capture and storage. The proposal was published in the
Federal Register on January 8, 2014, and the formal public
comment period closed on May 9, 2014. We have received more
than two million comments on this proposal and will carefully
consider them as we develop a final rule.
On June 2, 2014, EPA issued its proposed Clean Power Plan
for existing plants. The plan is built on advice and
information from states, cities, businesses, utilities, and
thousands of people about the actions they are already taking
to reduce carbon dioxide emissions. It aims to cut energy waste
and leverage cleaner energy sources by doing two things: First,
it uses a national framework to set achievable state-specific
goals to cut carbon pollution per megawatt hour of electricity
generated. And second, it empowers the states to chart their
own, customized path to meet their goals.
The EPA's stakeholder outreach and public engagement in
preparation for this rulemaking was unprecedented. Starting
last summer, we held eleven public listening sessions around
the country. We participated in hundreds of meetings with a
broad range of stakeholders, including small entity interests
such as municipal and rural electric cooperatives, across the
country, and talked with every state.
Now, the second phase of our public engagement has begun.
We've already had dozens of calls and meetings with states and
other stakeholders. The more formal public process--both a
public comment period that runs through October 16, 2014, and
public hearings this week in Atlanta, Denver, Pittsburgh, and
Washington, DC--will provide further opportunity for
stakeholders and the general public to provide input.
There has been tremendous public interest in the proposal:
already, we have received nearly 300,000 written comments on
the proposal. At the public hearings this week, we anticipate
hearing oral comments from about 1,600 people, many of whom
represent small businesses.
In drafting the power plant proposals, we have been mindful
of its effects on small businesses and careful to ensure we are
complying with SBREFA and all applicable requirements. Outreach
and public comment are an important component of our rulemaking
process, and we have often designed our rules to ensure that
they do not impose an undue burden on small entities.
Waters of the U.S. Proposed Rule
The foundation of the agencies' rulemaking efforts to
clarify protection under the CWA is the goal of providing clean
and safe water to all Americans. Clean water is vital to every
single American--from families who rely on affordable, safe,
clean waters for their public drinking water supply, and on
safe places to swim and healthy fish to eat, to farmers who
need abundant and reliable sources of water to grow their
crops, to hunters and anglers who depend on healthy waters for
recreation and their work, to businesses that need a steady
supply of clean water to make their products. The range of
local and large-scale businesses that we depend on--and who, in
turn, depend on a reliable supply of clean water--include
tourism, health care, farming, fishing, food and beverage
production, manufacturing, transportation and energy
generation. Approximately 117 million people--one in three
Americans--get their drinking water from public systems that
rely on seasonal, rain-dependent, and headwater streams--the
very waters this rule would ensure are protected from
pollution.\2\
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\2\ A county-level map depicting the percent of the population
receiving drinking water directly or indirectly from stream that are
seasonal, rain-dependent or headwaters is available at http://
water.epa.gov/type/rsl/drinkingwatermap.cfm.
In recent years, several Supreme Court decisions have
raised complex questions regarding the geographic scope of the
Act. For nearly a decade, members of Congress, state and local
officials, industry, agriculture, environmental groups, and the
public have asked our agencies for a rulemaking to provide
clarity. This complexity has made enforcement of the law
difficult in many cases, and has increased the amount of time
it takes to make jurisdictional determinations under the CWA.
In response to these implementation challenges and significant
stakeholder requests for rulemaking, the agencies developed the
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proposed rule.
We believe the result of this rulemaking will be to improve
the process for making jurisdictional determinations for the
CWA by minimizing delays and costs and to improve
predictability and consistency for landowners.
The agencies' proposed rule helps to protect the nation's
waters, consistent with the law and currently available
scientific and technical expertise. The rule provides
continuity with the existing regulations, where possible, which
will reduce confusion and will reduce transaction costs for the
regulated community and the agencies. Toward that same end, the
agencies also proposed, where consistent with the law and their
scientific and technical expertise, categories of waters that
are and are not jurisdictional, as well as categories of waters
and wetlands that require a case-specific evaluation to
determine whether they are protected by the CWA.
The agencies' proposed rule continues to reflect the
states' primary and exclusive authority over water allocation
and water rights administration, as well as state and federal
co-regulation of water quality. The agencies worked hard to
ensure that the proposed rule reflects these fundamental CWA
principles, which we share with our state partners.
For the past several years, the EPA and the Corps have
listened to input from the agriculture community while
developing the proposed rule. Using the input from those
discussions, the EPA and the Corps then worked with the USDA to
ensure that concerns raised by farmers and the agricultural
industry were addressed in the proposed rule. The proposed rule
does not change, in any way, existing CWA exemptions from
permitting for discharges of dredged and/or fill material into
waters of the U.S. associated with agriculture, ranching, and
forestry activities.
I want to emphasize that farmers, ranchers, and foresters
who are conducting these activities covered by the exemptions
(activities such as plowing, tilling, planting, harvesting,
building and maintaining roads, ponds and ditches, and many
other activities in waters on their lands), can continue these
practices after the new rule without the need for approval from
the Federal government.
The scope of the term ``waters of the U.S.'' has generated
substantial interest within the small business community. In
light of this interest, the EPA determined to seek early and
wide input from representatives of small entities while
formulating a proposed definition of this term that reflects
the intent of Congress consistent with the mandate of the
Supreme Court's decisions. This input was sought voluntarily,
as it was certified in the preamble to the proposed rule that
the proposed rule will not have a significant economic impact
on a substantial number of small entities, as defined by the
Regulatory Flexibility Act (RFA).\3\
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\3\ Because fewer waters will be subject to the CWA under the
proposed rule than are subject to regulation under the existing
regulations, this action will not affect small entities to a greater
degree than the existing regulations. As a consequence, this action if
promulgated will not have a significant adverse economic impact on a
substantial number of small entities, and therefore no regulatory
flexibility analysis is required. Additional background regarding the
agencies' compliance with the RFA is available in the preamble to the
proposed rule. See 79 FR 22220.
The small entities outreach process has enabled the
agencies to hear directly from small business representatives,
at a very preliminary stage, about how this complex issue
should be approached. EPA has also prepared a report
summarizing the small entity outreach to date, the results of
this outreach, and how these results have informed the
development of this proposed rule.\4\ Since publishing the
proposed rule, the agencies have met many times with small
businesses and other entities to hear their perspectives on the
proposed rule and to identify potential opportunities for
further clarifying CWA jurisdiction in a final rule. Most
recently, the agencies participated in an SBA-sponsored
roundtable on July 21st. We look forward to continuing these
efforts both during the remainder of the public comment period
and as we write a final rule.
---------------------------------------------------------------------------
\4\ This report is available in the docket for the proposed rule at
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-1927.
The agencies published the proposed rule in the Federal
Register on April 21, and the public comment period on the
proposed rule will be open for 182 days, closing on October 20.
During this period, the agencies have launched a robust
outreach effort, holding discussions around the country and
gathering input from states, local governments, small
businesses, and other stakeholders needed to share a final
rule. We welcome comments from all stakeholders on the
agencies' proposed rule. At the conclusion of the rulemaking
process, the agencies will review the entirety of the completed
administrative record, including public comments and the EPA's
final science synthesis report, as we work to develop a final
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rule.
Thank you again, and I will be happy to answer your
questions.
[GRAPHIC] [TIFF OMITTED] T8925.001
Questions for the Record
Committee on Small Business
Hearing: ``Regulatory Overreach: Is EPA Meeting Its Small Business
Obligations?''
July 30, 2014
Chairman Graves
1. The Regulatory Flexibility Act, 5 U.S.C. Sec. Sec. 601-
12 (RFA), requires the EPA to make a threshold determination
whether a proposed rule is likely to have a ``significant
economic impact on a substantial number of small entities.''
EPA refers to this threshold analysis as ``screening analysis''
in its own RFA compliance guide.\1\ The screening analysis
informs EPA whether or not it has enough information to be able
to certify that a rule does not require it to conduct an
initial regulatory flexibility analysis.
---------------------------------------------------------------------------
\1\ ENVIRONMENTAL PROTECTION AGENCY, FINAL GUIDANCE FOR EPA
RULEWRITERS: REGULATORY FLEXIBILITY ACT 9-30 (2006) [hereinafter EPA
RFA Guidance], available at http://www.epa.gov/sbrefa/documents/
GuidanceRegFlexAct.pdf.
a. Did the EPA conduct ``screening analysis'' for the
proposed rule that would set separate CO2 emission standards
for new power plants?\2\ If so, please provide the screening
analysis to the Committee.
---------------------------------------------------------------------------
\2\ Standards of Performance for Greenhouse Gas Emissions From New
Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg.
1430 (Jan. 8, 2014).
Response: The Regulatory Flexibility Act (RFA) generally
requires an agency to prepare a regulatory flexibility analysis
of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number
of small entities. Small entities include small businesses,
---------------------------------------------------------------------------
small organizations, and small governmental jurisdictions.
After considering the economic impacts of the proposed
Carbon Pollution Guidelines for New Power Plants on small
entities, the Administrator certified that this action will not
have a significant economic impact on a substantial number of
small entities.
We did not include an analysis of the illustrative impacts
on small entities that may result from implementation of this
proposed rule because we do not anticipate any compliance costs
over a range of likely sensitivity conditions as a result of
this proposal. EPA typically uses a comparison of costs as a
percentage of sales or a ``cost-to-sales ratio'' as the metric
to determine whether a small entity is significantly impacts by
a proposed regulation. For the proposed Carbon Pollution
Guidelines, the cost-to-sales ratio for all affected small
entities would be zero, indicating no impact. The EPA believes
that electric power companies will choose to build new EGUs
that comply with the regulatory requirements of this proposal
because of existing and expected market conditions. (See the
RIA at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-
OAR-2013-0495-0023 for further discussion of sensitivities).
The EPA does not project any new coal-fired EGUs without CCS to
be built. Accordingly, there are no anticipated economic
impacts as a result of this proposal.
b. Did the EPA conduct ``screening analysis'' for the
proposed rule that would revise the definition of ``waters of
the United States'' for all sections of the Clean Water Act?''
\3\ If so, please provide the screening analysis to the
Committee.
---------------------------------------------------------------------------
\3\ Definition of ``Waters of the United States'' Under the Clean
Water Act, 79 Fed. Reg. 22,188 (Apr. 21, 2014).
Response: The Regulatory Flexibility Act generally requires
an agency to prepare a regulatory flexibility analysis for any
rule subject to notice-and-comment rulemaking requirements
under the Administrative Procedure Act or any other statute
unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small
entities. As part of their ``Waters of the U.S.'' rulemaking,
the EPA certified that the proposed rule will not have a
significant economic impact on a substantial number of small
---------------------------------------------------------------------------
entities.
Under the RFA, the impacts of concern are significant,
disproportionate adverse economic impacts on small entities
subject to the rule, because the primary purpose of the initial
regulatory flexibility analysis is to identify and address
regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603.
The scope of regulatory jurisdiction in this proposed rule is
narrower than that under the agencies' existing regulations.
Because fewer waters will be subject to the CWA under the
proposed rule than are subject to regulation under the existing
regulations, this action will not adversely affect small
entities to a greater degree than the existing regulations. The
agencies' proposed rule is not designed to ``subject'' any
entities of any size to any specific regulatory burden. Rather,
it is designed to clarify the statutory scope of the ``waters
of the United States,'' consistent with Supreme Court
precedent. This action if promulgated will not have a
significant adverse economic impact on a substantial number of
small entities, and therefore no regulatory flexibility
analysis is required.
2. In the ``Waters of the United States'' proposed rule,
the EPA certified the rule as one that will not have a
``significant economic impact on a substantial number of small
entities'' under the RFA. In the RFA certification, the agency
compared the proposed rule to the existing regulation. However,
in the Economic Analysis, the EPA and Corps compared the
proposed rule to the agencies' 2009-2010 field practices that
were based on the 2008 guidance.\4\ Why did the agencies use
two different baselines to assess the costs of the regulation?
---------------------------------------------------------------------------
\4\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ECONOMIC
ANALYSIS OF PROPOSED REVISED DEFINITION OF WATERS OF THE UNITED STATES
2 (2014).
Response: The appropriate legal comparison for the proposed
rule is the existing regulatory language. The scope of
regulatory jurisdiction in this proposed rule is narrower than
the agencies' existing regulations. Because fewer waters will
be subject to the CWA under the proposed rule than are subject
to regulation under the existing regulations, this action will
not adversely affect small entities to a greater degree than
the existing regulations. The agencies' proposed rule is not
designed to ``subject'' any entities of any size to any
specific regulatory burden. Rather, it is designed to clarify
the statutory scope of the ``waters of the United States,''
---------------------------------------------------------------------------
consistent with Supreme Court precedent.
As a practical matter, however, the agencies recognize that
implementing this rule will result in changes when compared to
current field practice, and this comparison can be useful in
informing policy decisions. As such, the draft economic
analysis quantifies the potential costs and benefits that could
result from the implementation of the proposed rule which would
result in new protected waters as compared to current guidance
and practice. The draft economic analysis will be updated and
published along with the final rule using the Corps 2013 and
2014 field data from the Section 404 program. The final
economic analysis will reflect the way in which the final rule
will be applied.
3. At the July 30, 2014 hearing, Deputy Administrator
Perciasepe stated the vast majority of road ditches would not
be jurisdictional under the ``Waters of the United States''
proposed rule. How many ditches has EPA or the Corps surveyed
or assessed to support this assertion? Does the EPA or the
Corps have any data that supports this assertion? If so, please
provide that data to the Committee.
Response: Deputy Administrator Perciasepe's statement at
the July 30 hearing referred to the fact that the proposed rule
would exclude ditches from Clean Water Act jurisdiction that
are excavated wholly in uplands, drain only uplands, and have
less than perennial flow. Those roadside ditches that are
excavated in uplands and have the primary purpose to drain
runoff from roads, such that they drain only uplands, would not
be jurisdictional under the proposed rule if they have less
than perennial flow. The ditch exclusion applies to all ditches
that fit the exclusion language, including many roadside and
agricultural ditches. The agencies believe the proposed rule
actually reduces regulation of ditches compared to the 2008
Army/EPA Jurisdiction Guidance that is currently in effect,
which allows for the regulation of both intermittent and
perennial flow ditches).
4. The EPA has issued statements, blog posts, tweets,
articles, and other documents about the ``Waters of the United
States'' proposed rule. Can small business owners and small
governmental jurisdictions rely on statements in those EPA
documents as a defense to a CWA enforcement action or lawsuit?
Response: At this time, jurisdictional determinations are
being made under existing Corps and EPA regulations and
guidance, and applicable case law not under the proposed rule.
To help inform the public regarding the proposed rule, the EPA
has also taken steps to translate the legal language and
scientific principles of the proposed rule into easier-to-
understand communications documents. This is the case for any
major regulatory action taken by the EPA or any other federal
agency. Such documents help explain the proposed rule to the
regulated public but do not substitute for it. The agencies
would suggest that the small business owner or small
governmental jurisdiction contact their local EPA or Corps
office for specific questions about Clean Water Act
jurisdiction.
5. EPA contends the ``Waters of the United States''
proposed rule provides greater clarity and certainty and will
not result in a significant expansion of CWA jurisdiction. If
that's the case, will EPA agree to publish jurisdictional maps
similar to the current National Wetlands Inventory maps showing
what water bodies would and would not be jurisdictional under
the proposed rule before publishing the final rule?
Response: The agencies' proposed rule does not include a
specific delineation and determination of waters across the
country that would be jurisdictional under the proposed rule.
Consistent with the more than 40-year practice under the Clean
Water Act, the agencies make determinations regarding the
jurisdictional status of particular waters almost exclusively
in response to a request from a potential permit applicant or
landowner asking the agencies to make such a determination.,
The agencies are currently considering a number of options for
the treatment of ``other waters'' under the final rule. Once
the rule is finalized, the agencies will work to develop
outreach materials for the public to make it as clear as
possible which waters are jurisdictional and which are not.
Depending on the option(s) selected for the final rule, the
agencies may consider including maps as part of these materials
if they determine that these will increase clarity for the
public.
Within the existing framework, the agencies' proposed rule
would provide clearer categories of waters that would be
jurisdictional, as well as a clearer list of the waters and
features that are not jurisdictional. The agencies' proposed
rule would not protect any new types of waters that have not
historically been covered under the Clean Water Act and is
consistent with the Supreme Court's more narrow reading of
Clean Water Act jurisdiction. Providing a clearer regulatory
definition will streamline the process of making jurisdictional
determination and provide additional clarity and predictability
to this process.
6. The RFA requires EPA to assess the impacts of its rules
on small governmental jurisdictions, which are those with a
population of 50,000 or less. EPA previously estimated that
there are 40,000 small governmental jurisdictions in the United
States.\5\ What steps did the EPA take to specifically consider
the burdens that the ``Waters of the United States'' rule will
impose on these small entities?
---------------------------------------------------------------------------
\5\ EPA RFA Guidance, supra note 1, at 46-7.
Response: The Regulatory Flexibility Act generally requires
an agency to prepare a regulatory flexibility analysis for any
rule subject to notice-and-comment rulemaking requirements
under the Administrative Procedure Act or any other statute
unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small
entities. As part of their ``Waters of the U.S.'' rulemaking,
the EPA certified that their proposed rule will not have a
significant economic impact on a substantial number of small
---------------------------------------------------------------------------
entities.
At the same time, the agencies recognize the substantial
interest in this issue by small governmental jurisdictions and
other small-entity stakeholders. In light of this interest, the
EPA and the Corps determined to seek early and wide input from
representatives of small entities while formulating a proposed
rule. This process has enabled the agencies to hear directly
from these representatives, at an early stage, about how they
should approach this complex question of statutory
interpretation, together with related issues that such
representatives of small entities may identify for possible
consideration in separate proceedings. The EPA has also
prepared a report summarizing their small entity outreach to
date, the results of this outreach, and how these results have
informed the development of this proposed rule. This report is
publicly available in the docket for this proposed rule.
Finally, on October 15, 2014, the agencies hosted a second
roundtable to facilitate input from small entities, which
included participants from two small government jurisdictions.
A summary of this roundtable is also available in the docket
for the proposed rule.
Congressman Mick Mulvaney (SC-5)
Congressman Tom Rice (SC-07)
Congressman Scott Tipton (CO-03)
1. I am concerned that the EPA's Lead Renovation, Repair,
and Painting (LRRP) Rule could impose regulatory costs that are
so high they would offset any financial benefit of energy-
efficiency projects. This would discourage renovations and
upgrades that are otherwise within the EPA's priorities of
lowering power consumption, reducing greenhouse gas emissions,
and creating green jobs. Current market estimates say the rule
has increased the cost of a project upwards of 30 percent. In
developing the LRRP rules, has the EPA considered the negative
potential impacts on our other national environmental
priorities? If so, what were those considerations and
conclusions?
Response: EPA aimed to keep costs reasonable in developing
its requirements for lead-safe work practices. In fact, EPA
heard from industry that many of the practices were already in
use by some contractors even before the rule as promulgated,
because lead-safe work practices also have ancillary benefits
of reducing overall dust during and after a job. In most
general terms, the costs to comply with the lead-safe work
practices required by a rule depend on the size of the job; on
average, the costs can be up to a couple hundred dollars. For
contractors who were already using some of the lead-safe work
practices, however, the incremental cost would be lower.
Overall, the benefits of the LRRP rule and amendments, in terms
of avoided health, medical, and educational costs, are expected
to significantly outweigh the cost of improved work practices.
During the development of amendments to the LRRP rule, EPA
considered how complying with the rule could potentially affect
the federal government's Weatherization Assistance Program
(WAP) and the Home Star program, both of which were aimed at
improving energy efficiency in homes (i.e., whether there would
be enough trained and certified renovators to do the work in
the WAP and Home Star programs). EPA concluded the capacity in
2010 would be sufficient. As recently as June 2014, there were
566 training providers accredited for LRRP (including 361
traveling trainers) and 115,370 certified firms (137,256 firms
including those approved by authorized states), and more than
510,000 individuals have been trained as Certified Renovators.
2. Based on previous fines for violations of the LRRP Rule,
it seems that the EPA relies on retroactive record examination
to audit compliance rather than site visits. This puts a
heavier burden on properly filling out paperwork than actually
following the LRRP rules. And, it applies an additional burden
upon contractors that utilize subcontractors for elements of a
job that may be under the LRRP rule. Has the EPA considered
more accurate means of ensuring LRRP compliance? If so, what?
If not, why not? Is the EPA more concerned with issuing fines
or ensuring safety compliance?
Response: The recordkeeping checklist for the Lead
Renovation, Repair and Painting (LRRP) Rule is very
straightforward and easy to complete. When the EPA discovers a
firm is in violation of the LRRP Rule we may also review that
firm's records to determine if there is a pattern of non-
compliance or if the violations we discovered are limited to
that inspection. General contractors who use subcontractors are
not required to fill out or keep the records of the
subcontractors, but must be able to provide those records from
the subcontractors if requested. The EPA has found the record
review process to be an effective means of determining the
overall compliance status of contractors conducting renovations
subject to the LRRP Rule. The EPA's first concern is ensuring
compliance with the work practice safety standards of the LRRP
Rule to protect the health of the occupants, especially the
young children, of the houses or child occupied facilities
undergoing renovation.
Congressman Mick Mulvaney (SC-5)
1. This past January, Congress restored funding for the
Centers for Disease Control and Prevention's (CDC) Childhood
Lead Poisoning Prevention Program. Does the EPA consult with
the CDC on results of the agency's lead paint monitoring? If
not, why not? If so, are we seeing a measurable decline in lead
paint health issues for children?
Response: Over the years, EPA and the Centers for Disease
Control and Prevention (CDC) have partnered on various lead
initiatives. For example, CDC participates as an active member
on the HUD and EPA-chaired Federal Lead-Based Paint Task Force
and EPA served an en ex officio member of CDC's former Federal
Advisory Committee on Childhood Lead Poisoning. Additionally,
the EPA and CDC continuously work together on outreach efforts
such as National Lead Poisoning Prevention Week and activities
related to the Global Alliance to Eliminate Lead Paint.
Regarding monitoring, as described in EPA's Air Quality
Criteria for Lead document (2006) there are many sources that
contribute to lead exposure, thus any measure of blood lead
will reflect all sources of lead exposure. EPA is unaware of
any national data set that directly measures only the
reductions of those lead hazards in homes caused by lead-based
paint. The best currently available data set for assessing
population level blood lead statistics is the CDC's National
Health and Nutrition and Examination Survey (NHANES).
Based on the NHANES 2014 data (sampling period 2009-2012),
2.1%, or an estimated 535,000 children, have BLLs greater than
or equal to 5 micrograms per deciliter ( g/dL), levels known to
put their academic and later life success at risk. This
demonstrates a decrease from previous years (sampling period
2005-2008 at 3.0%, sampling period 2003-2006 at 4.1%). While
overall decreasing BLLs are favorable, CDC's blood lead
surveillance data, collected from state and local health
departments, continues to identify a disproportionate share of
cases in low income and minority communities. There is no known
safe blood lead level for children, CDC, EPA and other federal
partners continue to work together to control or eliminate lead
hazards before children are exposed.
2. From June 4, 2014 through July 21, 2014, there were less
than 20 companies nationwide who were listed on the EPA
enforcement website at being cited for violating the Lead
Renovation, Repair and Painting Rule. It is my understanding
that EPA, itself, has shared its concern over its enforcement
plan, most notably its inability to identify contractors
operating without certification, registration or ethical
standards. How is the agency currently targeting those
contractors who are either in violation of EPA rules or
contractors who never received certification in the first
place?
Response: The EPA is most concerned about renovation
contractors who are not following the work practice safety
standards. Certified firms have also been found to be out of
compliance with the work practice safety standards of the Lead
Renovation, Repair and Painting (LRRP) Rule. The EPA often
receives tips or complaints from home owners, renters or
neighbors about renovation work practices which are not
containing dust and debris. This information can lead to
inspections of worksites or records inspections depending on
the quality and timeliness of the information provided. The EPA
may also work with local health and building permit and
inspection departments to identify ongoing or projected
renovation projects in housing built before 1978 and may
conduct joint inspections of those worksites. The EPA is
currently analyzing other methods to more effectively identify
and prioritize potential non-compliance in areas with the
highest level of ``at-risk'' populations, (i.e. children under
six).
3. The EPA's Greenhouse gas rule will have significant
impacts on businesses and consumers in my state, particularly
manufacturing. If this rule is not implemented properly,
electricity rates could climb by as much as 50 percent. The EPA
has gone to great lengths to talk about how states have an
abundance of choices in the proposed rule. But, the rule
discriminates against South Carolina and other states that have
made proactive investments in new nuclear production. South
Carolina utilities and ratepayers have spent billions of
dollars to build the new reactors at the VC Summer plant- two
reactors that will deliver 1100 megawatts of carbon-free
electricity to South Carolina when they are completed in 2017
and 2018.
However, after reviewing this rule, I have learned that
South Carolina will get no credit for this carbon reduction.
The rule assumes that these plants are already online. Yet if
these plants were win, or solar, they would get credit under
the rule. Isn't a metric ton of carbon avoided a metric ton of
carbon avoided, regardless of where it comes from? Why isn't
all carbon-free generation treated the same? Is this something
the EPA intends to change before it issues the final rule?
Response: The EPA is conducting unprecedented outreach
about this proposal and encouraging robust public comment and
participation in the formulation of the final Clean Power Plan.
We are hearing substantial input on the treatment of new
nuclear in goal setting and will consider those comments
carefully as we work toward a final rule. The comment period on
the proposal is open through December 1, 2014.
Under the Clean Power Plan, the EPA sets the goals and
states get to decide how to meet the goals. States can use the
under construction nuclear units in their compliance plans to
meet the goal. To set the goals in the proposal, the EPA
considered nuclear units that currently have permits for
construction and operation. The proposal assumes a 90% capacity
factor in generation for the new nuclear units. However, it
will be up to states to decide how and to what extent to rely
on these units in their plans. For example, if the under
construction units perform better than a 90% capacity factor,
these units could help states get even closer to their goals.
Congressman Scott Tipton (CO-03)
1. I continue to hear from constituents who have serious
concerns over regulations already imposed upon them by the EPA.
Specifically, I hear from small business remodelers about the
EPA's Residential Home's Lead Renovation, Repair and Painting
(LRRP) rule that became effective April 2010. In July 2010, the
EPA eliminated the opt-out, which doubled the number of homes
affected by the rule. This action increased first-year
compliance costs from $800 million to $1.3 billion and affected
approximately 7.2 million renovation events per year.
Training and certification requirements for contractors and
employees performing renovation, repair and painting work on
residences built prior to Jan. 1, 1978 apply to painters,
plumbers, contractors, window and door installers, electricians
and similar specialists. Estimated costs to obtain
certification for a remodeling company are at least $300.
Initial courses for certified renovators are $300-$500. In
addition, the employer is required to pay that employee for the
day.
We all want children and families to be safe in their
homes. However, if we impose a rule on business, we should at
least make sure the cost and burden of compliance is worth the
benefit. This past January, in a bipartisan effort, Congress
restored funding for the Centers for Disease Control and
Prevention's (CDC) Childhood Lead Poisoning Prevention Program.
The 2014 Consolidated Appropriations Act included $15 million
for the CDC program. Does the EPA regularly consult with the
CDC on results of the agency's lead paint monitoring? If not,
why not? And if it does, are we seeing a measurable decline in
lead paint health issues for children? What percentage of
childhood lead paint health issues have decreased since the
2010 rule was put in place?
Response: Over the years, EPA and the Centers for Disease
Control and Prevention (CDC) have partnered on various lead
initiatives. For example, CDC participates as an active member
on the HUD and EPA-chaired Federal Lead-Based Paint Task Force
and EPA served as an ex officio member of CDC's former Federal
Advisory Committee on Childhood Lead Poisoning. Additionally,
the EPA and CDC continuously work together on outreach efforts
such as National Lead Poisoning Prevention Week and activities
related to the Global Alliance to Eliminate Lead Paint.
Regarding monitoring, as described in EPA's Air Quality
Criteria for Lead document (2006) there are many sources that
contribute to lead exposure, thus any measure of blood lead
will reflect all sources of lead exposure. EPA is unaware of
any national data set that directly measures only the
reductions of only those lead hazards in homes caused by lead-
based paint. The best currently available data set for
assessing population level blood lead statistics is the CDC's
National Health and Nutrition and Examination Survey (NHANES).
Based on the NHANES 2014 data (sampling period 2009-2012),
2.1%, or an estimated 535,000 children, have BLLs greater than
or equal to 5 g/dL, levels known to put their academic and
later life success at risk. This demonstrates a decrease from
previous years (sampling period 2005-2008 at 3.0%, sampling
period 2003-2006 at 4.1%). While overall decreasing BLLs are
favorable, CDC's blood lead surveillance data, collected from
state and local health departments, continues to identify a
disproportionate share of cases in low income and minority
communities. There is no known safe blood lead level for
children. CDC, EPA and other federal partners continue to work
together to control or eliminate lead hazards before children
are exposed.
2. Second, how is EPA enforcing this rule? For example,
from June 4, 2014 through July 21, 2014 there were 15 companies
nationwide who were noted on the EPA enforcement website as
being cited for violations. Four of those companies were
trainers of the certified lead paint course for renovators. Of
the remodeling companies noted, all but one were uncertified.
The National Association of the Remodeling Industry (NARI) has
been tracking violations on the EPA's website since March 2013.
There have been a total of 68 violations posted by EPA since
March 2013. Given the number of remodelers who are uncertified
in the nation, this is a poor showing of enforcement. It is my
understanding that EPA, itself, has shared its concern over its
enforcement plan, most notably its inability to identify
contractors operating without certification, registration or
ethical standards. How is the agency currently targeting those
contractors who do not even bother to get certified?
Response: The EPA is most concerned about renovation
contractors who are not following the work practice safety
standards. Certified firms have also been found to be out of
compliance with the work practice safety standards of the Lead
Renovation, Repair and Painting (LRRP) Rule. The EPA often
receives tips or complaints from home owners, renters or
neighbors about renovation work practices which are not
containing dust and debris. The EPA may also work with local
health and building permit and inspection departments to
identify ongoing or projected renovation projects in housing
built before 1978 and may conduct joint inspections of those
worksites. The EPA is currently analyzing other methods to more
effectively identify and prioritize potential non-compliance in
areas with the highest level of ``at-risk'' populations, (i.e.
children under six).
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