[Senate Hearing 113-716]
[From the U.S. Government Publishing Office]
S. Hrg. 113-716
HEARING ON THE NOMINATIONS OF KENNETH KOPOCIS TO BE ASSISTANT
ADMINISTRATOR FOR THE OFFICE OF WATER OF THE U.S. ENVIRONMENTAL
PROTECTION AGENCY (EPA), JAMES JONES TO BE ASSISTANT ADMINISTRATOR FOR
THE OFFICE OF CHEMICAL SAFETY AND POLLUTION PREVENTION OF THE EPA, AND
AVI GARBOW TO BE GENERAL COUNSEL FOR THE EPA
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JULY 23, 2013
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana DAVID VITTER, Louisiana
THOMAS R. CARPER, Delaware JAMES M. INHOFE, Oklahoma
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island MIKE CRAPO, Idaho
TOM UDALL, New Mexico ROGER WICKER, Mississippi
JEFF MERKLEY, Oregon JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York DEB FISCHER, Nebraska
MAZIE K. HIRONO, Hawaii
Bettina Poirier, Majority Staff Director
Zak Baig, Republican Staff Director
C O N T E N T S
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Page
JULY 23, 2013
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 2
Crapo, Hon. Mike, U.S. Senator from the State of Idaho........... 4
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
Island......................................................... 5
Vitter, Hon. David, U.S. Senator from the State of Louisiana..... 7
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland 8
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 9
Udall, Hon. Tom, U.S. Senator from the State of New Mexico....... 11
Fischer, Hon. Deb, U.S. Senator from the State of Nebraska....... 11
WITNESSES
Kopocis, Kenneth, nominated to be Assistant Administrator for the
Office of Water, U.S. Environmental Protection Agency.......... 13
Prepared statement........................................... 16
Responses to additional questions from:
Senator Boxer............................................ 18
Senator Vitter........................................... 21
Senator Inhofe........................................... 38
Senator Barrasso......................................... 41
Senator Sessions......................................... 44
Senator Wicker........................................... 47
Senator Boozman.......................................... 48
Senator Fischer.......................................... 53
Jones, James, nominated to be Assistant Administrator for the
Office of Chemical Safety and Pollution Prevention, U.S.
Environmental Protection Agency................................ 62
Prepared statement........................................... 64
Responses to additional questions from:
Senator Boxer............................................ 66
Senator Carper........................................... 67
Senator Vitter........................................... 69
Senator Fischer.......................................... 79
Senator Fischer with Senator Crapo....................... 80
Garbow, Avi, nominated to be General Counsel, U.S. Environmental
Protection Agency.............................................. 82
Prepared statement........................................... 84
Responses to additional questions from:
Senator Boxer............................................ 87
Senator Vitter........................................... 89
Senator Inhofe........................................... 111
Senator Fischer.......................................... 115
ADDITIONAL MATERIAL
Materials from the U.S. District Court for the Southern District
of Florida--New Hope Power Company and Okeelanta Corporation
(plaintiffs) vs. U.S. Army Corps of Engineers and Steven L.
Stockton (defendants):
Order granting in part plaintiffs' motion for preliminary
injunction and for summary judgment; denying defendants'
cross-motion for summary judgment.......................... 134
Order denying defendants' motion pursuant to Rule 59(e) to
alter or amend judgment; granting third party motions to
intervene.................................................. 153
HEARING ON THE NOMINATIONS OF KENNETH KOPOCIS TO BE ASSISTANT
ADMINISTRATOR FOR THE OFFICE OF WATER OF THE U.S. ENVIRONMENTAL
PROTECTION AGENCY (EPA), JAMES JONES TO BE ASSISTANT ADMINISTRATOR FOR
THE OFFICE OF CHEMICAL SAFETY AND POLLUTION PREVENTION OF THE EPA, AND
AVI GARBOW TO BE GENERAL COUNSEL FOR THE EPA
----------
TUESDAY, JULY 23, 2013
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:58 a.m. in room
406, Dirksen Senate Office Building, Hon. Barbara Boxer
(chairman of the committee) presiding.
Present: Senators Boxer, Vitter, Cardin, Whitehouse, Udall,
Inhofe, Barrasso, Crapo, Boozman, and Fischer.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. The committee will come to order. The Senate
Committee on Environment and Public Works will consider the
nomination of Ken Kopocis to be Assistant Administrator for the
Office of Water at the EPA, and Jim Jones to be Assistant
Administrator for the Office of Chemical Safety and Pollution
Prevention, and Avi Garbow to be General Counsel of the EPA.
The confirmation of qualified individuals to lead agencies
is one of the Senate's most important responsibilities, and I
am happy to say that last week we voted to confirm Gina
McCarthy as the Administrator of the EPA and, as Administrator,
she is responsible for ensuring the EPA fulfill its critical
mission of protecting public health and the environment.
While Gina heads the Agency, she does rely on her assistant
administrators and general counsel to help make the day-to-day
decisions that keep the Agency on track. Each of the nominees
here today brings essential experience and expertise that will
help the Administrator implement programs that reduce pollution
in the air we breathe, remove contamination from the water we
drink, and clean up toxic wastes threatening communities.
Ken Kopocis is well known to this committee. From 2006 to
2008, he served on the EPW Committee Majority Staff as Deputy
Staff Director for Infrastructure; helped us get through some
very important legislation. Very difficult, but he was so good
at this. He worked on a number of water issues, he played that
key role in WRDA of 2007, and he has held multiple positions on
the House Transportation and Infrastructure Committee. Ken's
work on water issues in the Congress spans over 25 years.
Jim Jones brings more than two decades of experience
working for the EPA. He is currently the Acting Assistant
Administrator for EPA's Office of Chem Safety and Pollution
Prevention. From 2007 to 2011, Mr. Jones was Deputy Assistant
Administrator for this office, and from 2003 to 2007 he served
as Director of the Office of Pesticide Programs at the EPA.
Before that, he held several management positions at EPA and
was Special Assistant to the Assistant Administrator for
toxics.
His depth of experience on chem regulation policies will
help us move forward on these critical issues.
Avi Garbow has worked in the legal field for more than 25
years. He was an attorney-advisor at EPA from 1992 to 1997; he
worked for the U.S. Justice Department from 1997 to 2002, where
he served in both the Environmental Crimes Section and the
Wildlife and Marine Resources Section. After gaining additional
legal experience in the private sector, he came back to the EPA
in 2009, where he has worked as Deputy General Counsel for the
Agency.
His legal expertise will be valuable to us and to the
Administrator.
So this hearing is an important step in the Senate's open
and transparent process of considering and confirming people
who will work every day to make our lives better. I believe
this committee and the full Senate should act quickly on these
nominees and provide Administrator McCarthy with the qualified
people she needs in order to do her job, and I look forward to
the nominees' testimony.
With that, I would turn to Senator Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Madam Chairman, and welcome all
three gentlemen here today.
First, I am concerned that the EPA has a bias in its
interpretation of Federal court cases. In a recent case
involving Summit Petroleum, the EPA required the company to
combine or aggregate the emissions of multiple oil and gas
wells spread out over 42 square miles in Michigan and consider
them as though they were one source. This triggered an
expensive permitting requirement that would have given the EPA
a foothold of additional regulation over this entity.
Litigation ensued; Summit Petroleum won in the 6th Circuit
Court of Appeals late last year. The court said the EPA could
not combine sources unless they are truly right next to one
another, adjacent.
On December 21st, 2012, the EPA issued a memo explaining
how the Agency would apply this decision moving forward and,
instead of applying it nationwide, the Agency said it would be
limited to just those within the 6th Circuit. This is
problematic to me because it underscores the adversarial nature
of the Agency toward oil and gas industry.
But it was easy for EPA to apply this decision, even if
only in the 6th Circuit. All EPA did was essentially revive a
2007 memo on the same topic. This memo is important because it
was first appealed by Administrator McCarthy when she was head
of the Air Office in September 2009. While the previous
administration had interpreted the law correctly, Administrator
McCarthy made a policy decision that was intended to require
more EPA permitting of oil and gas wells in inappropriately
combining the emissions of multiple sources into one.
The EPA lost in court, after reversing in appropriate
policy in 2009, but EPA is not applying this decision
nationwide simply because it doesn't like it. The EPA has done
the opposite in cases where it does like the outcome of the
court, quickly applying a circuit or a district court's
decision nationwide.
I had asked my staff to come up with an example of how this
is different, the case that they are using currently. In a
Colorado District case involving Louisiana Pacific, the court
adopted a highly constrained view of what it takes to establish
federally enforceable emission limitations. Had the court
respected a more broad view of these limitations, it would have
lowered the total emissions of certain facilities and
eliminated their need to receive major source permits from the
EPA. But because the EPA wanted to increase the number of
sources requiring permitting, it issued a new guidance document
applying the district court's decision nationwide, just the
opposite of what we have today, soon after the decision was
made, at great cost to the affected entities.
I am also concerned about the Agency's use of highly
unreliable and objectionable methods to calculate the benefits
of rules it is putting together. Most notably, the Water
Office's 316(b) cooling water rule relies on a stated
preference survey to justify its high cost. This survey asks
respondents to name a price they are willing to pay to keep
fish from being killed. These surveys are notorious for not
being well constructed, and in this case it does not provide
respondents with a true picture of the tradeoffs being made.
But the EPA is in the process of using this rule to inflate the
benefits of a rule so that it can justify one that is more
costly to the power generation and manufacturing sectors in the
economy.
Finally, the EPA's pursuit of guidance over waters of the
U.S. continues to be a major concern of mine. Congress flatly
rejected the proposals of expanding the Agency beyond the
navigation waters when the Clean Water Restoration Act was
considered in the 111th Congress. And, of course, you remember
that, Ken, because you were there, actually working with
Congressman Oberstar. At that time I think he was the ranking
member. Anyway, that was taking place at that time. And not
only did we beat that, but we also, the two authors, Oberstar
and Feingold in the Senate, were both defeated in the next
election. So I can see that there was a lot of enthusiasm for
stopping that.
So that is right, you are about to hit that. Go ahead and
do it.
I am looking forward to this hearing.
Senator Boxer. As am I.
Senator Inhofe. As am I. And I know all three of the
witnesses, so that is kind of unusual, isn't it?
Senator Boxer. That is good. That is excellent.
OK, so the order of arrival: Senator Crapo, Barrasso,
Fischer. Is that right? OK.
OPENING STATEMENT OF HON. MIKE CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. Thank you, Madam Chairman. I appreciate this
hearing today, as well. I want to thank the nominees for being
here with us to discuss your nominations, and I appreciate your
willingness to serve.
There is no doubt that this Agency faces considerable
challenges, and as you are going to hear from a lot of us
today, there are issues that we have. I think that the
positions which the three of you have been nominated to are
important not only to Idaho, but to the Nation. As the members
of this committee are well aware, if you are confirmed, you
will be directly involved in setting policies that have far-
reaching effects for all Americans.
I just want to make a couple observations and talk about a
couple of specifics that maybe we can get into further in the
questions.
But I have to say that, in Idaho, probably the agency that
is most brought up to me by those who visit me, whether it is
individual citizens, farmers, ranchers, county commissioners,
mayors, or what have you, is the EPA, and the reason is because
of the EPA's reach into every aspect of the life of
individuals, businesses, and communities, particularly small
communities that don't have the economies of scale to deal with
a lot of the issues that are being brought to them. There is no
agency that has, I think, a greater reach, unless maybe it is
the IRS.
Actually, sometimes I joke only to think that perhaps maybe
the EPA and the IRS are competing to be the one most feared by
the people through their enforcement activities. And I am sorry
to say that, but I have to say that just in terms of the input
to my office from people from across the spectrum, there is
probably not an agency that is more frequently brought up than
the EPA because of its far reach, and many of us believe that
it is not necessary; that there is an enforcement mentality
that is extreme, and that rather than trying to work to find
solutions, instead we have an approach at the EPA to force
compliance and to utilize very heavy-handed techniques in order
to do so.
Now, if that is not fair or correct, I would love to
understand that. But I can tell you that it is not what my
constituents understand today. And let me just give a couple of
examples.
Probably everybody is familiar with the Sackett case, where
a family, and if you have seen the photographs, I don't think
anybody could reasonably believe that they were acting in
anything but good faith, tried to build their dream home near a
lake in Idaho, and after they started it was determined by the
EPA that this was a wetland, even though it wasn't on any
wetlands designations or anything like that.
The bottom line is that in order to deal with this issue,
what happened was the EPA threatened this family with fines up
to $75,000 a day. They accumulated up to the millions of
dollars, I think. I don't know what the final total was before
they finally got to go to court. And the EPA wouldn't even let
them challenge the compliance order that was issued in court;
claimed that they had no legal avenue to do anything but to
comply. And if they didn't comply, they had to face these
unbelievable fines that no individual, in fact, probably not
many businesses in Idaho could have lived with.
Ultimately the case went to court. The court said that the
EPA was wrong and, in fact, that the Sacketts did have a right
to challenge the compliance order, and now that case is, I
think, still in litigation as they make that challenge.
But it is the aggressive act of basically demanding
compliance, threatening phenomenal fines and penalties, and
being rigid about allowing the Agency's actions to even be
reviewed.
One other example and then I will quit; I know I am running
out of time here.
And that is the Clean Water Act. Mr. Kopocis, I know you
are involved with this, but we have been fighting over whether
navigable waters truly mean waters that are navigable or
whether it includes ditches and ponds and any other water that
accumulates; and courts have now ruled that navigable does have
meaning and there were efforts to overturn that here in
committee and in this Congress which were rebuffed. The word
navigable is still in the statute and yet it is my
understanding that there is a guidance, and perhaps rules to
follow, that essentially undercuts that and does what Congress
would not do; and that is an issue that I hope we can get into
in the questions and answers.
I see my time is now down to 5 seconds, so I better wrap it
up, but, again, thank you, Madam Chairman, for holding this
hearing.
Senator Boxer. Thank you so much.
I wanted to say, you know, your people are afraid of the
EPA. That is what you said, they fear the EPA.
Senator Crapo. Yes.
Senator Boxer. I want you to know in the polls our
favorable approval in the Senate is 9 percent, and the EPA is
70 percent favorable. But maybe the 30 percent all live in your
State.
Senator Crapo. They probably do.
Senator Boxer. In my State, people happen to really
appreciate clean air and clean water more than I could tell you
in California, because we have gone through such a bad period
of horrible smog. So it is just so interesting. What I love
about the Senate is the different perspectives we each bring
from our States.
Senator Crapo. Well, Madam Chairman, let me just say that
the mandate of the EPA under the statute to protect our water
and our air and our environment is one that is deeply
appreciated by the people of Idaho. It is the way that it is
being done and the heavy-handed manner that is causing these
troubles.
Senator Boxer. Fair enough.
Let's move to Senator Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Chairman. I am glad to see
these nominees moving forward. We have some important issues to
work through with Congress and the EPA in the President's
second term, and I think these are some very, very well
qualified public servants who will help EPA fulfill its mission
to protect human health and the environment.
We have recently come to a bipartisan agreement confirming
Administrator McCarthy, and I hope we can continue the
bipartisan spirit. Some of these nominees have been around for
a while. Mr. Kopocis was nominated for his position more than 2
years ago, so it is about time we got going on this, and I hope
our bipartisan streak can continue.
Mr. Kopocis is nominated to oversee the Office of Water,
which was responsible for keeping our water safe for drinking
and swimming and fishing. That office protects and restores
aquatic and marine habitats like wetlands that support
fisheries and recreation, and provides protection from flooding
and storms. They have a very important piece of work before
them that Rhode Island cares very much about, which is the rule
to address stormwater discharge. Obviously, an issue like that
requires a lot of balancing of interests of various
stakeholders, and Mr. Kopocis has plenty of experience doing
exactly that, balancing of interests and working together with
stakeholders.
In Rhode Island, our dominant physical feature and a
feature that is enormously important to our economy is our
Narragansett Bay. Well, 60 percent of Narragansett Bay's
watershed is out of state, it is in Massachusetts; and if they
are not taking care of their stormwater runoff in
Massachusetts, we pay the price in Rhode Island. And it is very
important that EPA be active in this area. We can have a heavy
rainfall dump as much as 90,000 pounds of nitrogen into
Narragansett Bay. So look forward to working with Mr. Kopocis
and with our friends from Massachusetts on that.
Obviously, the jurisdictional issue that Senator Crapo
raised is an important one, and I think we need to resolve that
so that there is not uncertainty for people who are out there
wondering whether regulations apply.
Mr. Jones has served the American public and five
presidents in 26 years at the EPA, and he has had a very
impressive career. Now EPA needs to help us work to overhaul
the Toxic Substances Control Act, and I don't think there could
be a better candidate from EPA than Mr. Jones to help this
committee move forward.
Senator Vitter, our ranking member, has been working in a
bipartisan fashion with Senator Lautenberg to introduce the
Chemical Safety Improvement Act. With the loss of Senator
Lautenberg, we need to find a way to continue forward to find a
way to overhaul the TSCA statute.
I want to just take a moment and say that our friend,
Senator Lautenberg, was a lifelong champion on this issue and
had a 95 percent lifetime score from the League of Conservation
Voters, but of all the conservation and environmental issues he
championed, none was dearer to him than the chemical safety
issue. So, in his name and memory, we want to work forward to
solve that problem and, Mr. Jones, I am sure you can be very
helpful in that.
The Office of General Counsel is obviously vital. I have
been executive department counsels before, myself, and I know
how wide-ranging the experience and energy that is required in
such a position. Mr. Garbow has more than two decades of legal
experience, including serving as the deputy to the position
that he has now been nominated for for the past 4 years. He has
been a partner in private practice; he has been a trial
attorney at DOJ.
Madam Chairman, these are people whose experience and whose
expertise will be an asset for the EPA and for the American
people, and I welcome them. I look forward to advancing their
nominations, and I hope they can be moved forward quickly in
the new spirit that we have developed regarding executive
nominees.
Senator Boxer. Thank you so much, Senator.
If it is OK with everyone, since Senator Vitter just came,
is it all right if we call on him next?
OPENING STATEMENT OF HON. DAVID VITTER,
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Vitter. Thank you, Madam Chairman. I apologize and
U.S. Airways apologizes for my being a little late, but it is
great to be with all of you and the nominees. These are
certainly three very pivotal positions with regard to EPA and
regulatory policy.
I would like to particularly focus this morning on the
President's nomination of Ken Kopocis as Assistant
Administrator for EPA's Office of Water. As a senior policy
advisor for the Office of Water, Mr. Kopocis is already part of
a team that is currently engaged in what we all think is a
troubling expansion of regulatory authority under Section 404
of the Clean Water Act. Any individual or business requiring a
permit to dredge or fill wetlands under Section 404 must now
worry, because of recent events, that EPA might preemptively
veto a project even before a permit application is even
submitted, or that the Agency may suddenly revoke a Section 404
permit years after it has been issued.
This is exactly the type of uncertainty that has been
threatening and putting a halt on a broad spectrum of economic
activity, particularly recently, including housing,
development, job creating, mining projects, and essential flood
control.
It also appears that the Office of Water is attempting to
dictate when a business should submit a Section 404 permit
application, a decision that should be left entirely to the
entity seeking the permit.
I look forward to hearing Mr. Kopocis' perspective on EPA's
unprecedented reading of Section 404 in this regard, as well as
other issues.
Mr. Jim Jones has worked at EPA for more than two decades
and has served as both Deputy Assistant Administrator, as well
as Acting Assistant Administrator for the Office of Chemical
Safety and Pollution Prevention at EPA. Again, this is a very
important position and I echo Senator Whitehouse's comments and
look forward to his playing, hopefully, a constructive role as
we try to bring forward a bipartisan TSCA reform.
And Mr. Avi Garbow has been nominated to replace Scott
Fulton as General Counsel of EPA. Mr. Fulton departed the
agency 4 days after Congress first questioned EPA on the former
administrator's use of the Richard Windsor alias email address.
His resignation also came on the heels of the resignation of
Region 6 Administrator Al Armendariz and was subsequently
followed by the resignation of Region 8 Administrator James
Martin. Mr. Martin resigned shortly after this committee
uncovered he had been using his personal email address to
conduct agency business, in violation of EPA policy.
These issues represent only a fraction of the problems at
EPA that the committee has uncovered. I mention these today
because these disappointments emanate from the same core: an
EPA that does not place sufficient focus on transparency and
accountability. As a result, the EPA inspector general is
investigating these and other instances of wrongdoing.
Through the course of negotiations surrounding Gina
McCarthy's confirmation, EPA leadership has agreed to issue new
guidance for implementing the IG's recommendations.
If confirmed as general counsel, Mr. Garbow will play an
instrumental role in restructuring EPA policy to improve the
Agency's compliance with fundamental transparency statutes such
as the Freedom of Information Act, the Privacy Act, and the
Federal Records Act. Moreover, he will be the final arbiter of
whether EPA intends to commit to any level of transparency
nearing what is so often espoused by the President. It is my
real hope that he will take to heart improving EPA's record on
transparency, that it is a nonpartisan and shared and important
goal. Ideally, we will be able to reach across the aisle and
work together with the Agency to help better comply with the
law, and I think our agreements reached during the McCarthy
nomination process is a very substantial and very important
part of that.
And I look forward to hearing from all of these nominees.
Thank you, Madam Chair.
Senator Boxer. Senator Cardin.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Thank you, Madam Chair.
Let me just concur with your initial observation about the
importance and public support for the mission of the
Environmental Protection Agency. People want to make sure that,
when they turn on their tap at home, the water that they get is
safe for them to drink, and they rely upon the Environmental
Protection Agency and our Federal framework of laws for that to
be true. They expect that when their children are swimming in a
lake, that it is safe for them to be in that lake swimming.
They expect that when they breathe the air, that the air will
be safe and that their children, who perhaps have respiratory
issues, will be able to go out and parents won't have to stay
home from work, lose a day of pay, because of air quality being
such dangerous for them to be out and breathing. And they
expect that our toxics and our chemicals are handled in a safe
manner in order to protect the welfare of our community.
That is what they expect and, quite frankly, the Government
has done a reasonable job in making that a reality. And I think
some of the proudest moments in the history of America is that
the Democrats and Republicans, working together to pass the
Clean Water Act, to pass the Clean Air Act, to work together to
set up sensible scientific-based laws to protect the safety of
the people in our community.
Ken Kopocis was there as we created those laws. I first got
to know him in 1987, when I was elected to the House of
Representatives, and worked with him back on those days on the
House side. I worked with him on the Senate side. He has spent
his entire career in public service in order to advance public
laws that make sense and public policy that makes sense.
Now, it is very interesting. Two years ago, Madam Chair,
when you had this hearing, when we were talking about Ken
Kopocis, I was proud to hear my Democratic and Republican
colleagues praise him for his commitment to public service but,
just as importantly, his ability to work with people of
different views in order to try to bring about harmony and
policy. That was our view 2 years ago, and I was quite
surprised that we never were able to confirm Ken Kopocis for
this position.
I look at the other nominees that are here, Jim Jones, who
has a very distinguished career in serving the Environmental
Protection Agency, critically important position in dealing
with chemicals. We need a confirmed position. I look at Avi
Garbow, who I was privileged to recommend to the President for
this appointment because of his distinguished career. An
outstanding attorney who understands the responsibilities in
that Agency.
We have three nominees whose qualifications are beyond
question. And now, Madam Chair, I want to just comment on what
Senator Whitehouse said, I hope this new spirit of cooperation,
we may differ on the final vote. I hope we don't differ on the
final vote. I hope all three are confirmed by the margins that
they deserve. But it is our responsibility to make sure that
the Senate takes up these positions for up or down votes. The
EPA is an important agency. Some in this committee may disagree
with the law. OK, try to change it. That is the democratic
process. Let's use regular order to deal with those policy
judgments. But the President and the American people are
entitled to have the positions that are provided by law filled
and confirmed, and we are certainly entitled to have up or down
votes on these nominations.
So, Madam Chair, I hope we will have a constructive hearing
where we can talk about the qualifications of these individuals
and their commitment to carrying out the law; not their views,
the law that has been passed by Congress, which the American
people support us enforcing those laws. But allow us to have up
or down votes. Stop the delay. Two years for this position to
be filled is outrageous. It is time for Congress to carry out
our responsibility. My colleagues talk about the
responsibilities of the people before us. How about our
responsibility to vote and allow the Senate to have an up or
down vote on these three nominees?
Senator Boxer. Thank you, Senator Cardin.
Senator Barrasso, followed by Senator Fischer.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Thank you, Madam Chairman. Thanks for
holding the hearing. I would like to welcome all the nominees.
I would also like to focus on one of the specific positions,
and that is the nomination of Ken Kopocis to be the head of the
EPA's Office of Water.
If confirmed, he would be in charge of implementing the
Clean Water Act, the Safe Drinking Water Act, and other
statutes. In the previous Congress, I expressed concerns with
regard to this nomination. I am still concerned with the depth
of this nominee's past involvement to change the scope of the
Clean Water Act beyond congressional intent, and we have heard
that from other Republican colleagues today who have made their
statements. I believe this nominee has still failed to explain
his views on public and stakeholder input on regulations that
he would be in charge of and explain his understanding of the
role of Congress versus the EPA in terms of who makes the laws
in this Nation.
We should not be taking making law through guidance, as is
the case with the pending clean water jurisdictional guidance
that is currently with the Office of Management and Budget.
This is the guidance that essentially expands the scope of
Federal authority to cover all wet areas within a State.
Agriculture, commercial and residential, real estate
development, electrical transmission, transportation, energy
development and mining will be affected and thousands of jobs
will be lost. By issuing a guidance document, as opposed to
going through the regular rulemaking process, EPA and the Corps
are bypassing the necessary public outreach required under the
Administrative Procedure Act and failing to fully consider the
legal, the economic, and the unforeseen consequences of their
actions.
EPA and the Corps affirm that this guidance will result in
an increase in jurisdictional determinations which will result
in an increased need for permits. Additional regulatory costs
associated with changes in jurisdiction and increases in
permits will erect bureaucratic barriers to economic growth,
will negatively impact farms, small businesses, commercial
development, road construction, and energy production, just to
name a few.
In addition, expanding Federal control over intrastate
waters will substantially interfere with the ability of
individual landowners to use their property.
The guidance also uses an overly broad interpretation of
the Rapanos decision. The effect is virtually all wet areas
that connect in any way to navigable waters are jurisdictional.
Both the plurality opinion and Kennedy rejected this assertion
of Rapanos.
I am not the only Member of Congress to address these
concerns and to express these concerns. We had a vote during
the Water Resources Development Act, WRDA, to block this
guidance. A clear bipartisan majority, 52 Senators, opposed
this guidance on that vote. This should send a clear signal to
the nominee and the Administration to not pursue this course of
action.
Madam Chairman, I look forward to getting more
clarification of my concerns, and thank you for holding the
hearing.
Senator Boxer. Thanks, Senator.
Senator Udall.
OPENING STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Udall. Thank you, Madam Chair. Pleasure to be here
with you today.
Let me thank the nominees for their service, and
congratulations on your nomination. It must be a particularly
exciting atmosphere, I think, at the EPA right now, knowing
that Gina McCarthy has been confirmed. As many of you know, she
is a very solid, good, hardworking person. I had experience in
New Mexico with her problem-solving abilities. She took a
situation which was in litigation; you had coal-fired plants,
you had the Governor of New Mexico, a lot of contentious
parties, and she resolved that. So I think her ability to just
focus on good common-sense solutions is very, very important
and I am very excited that she is now in the job and going to
be working with you.
I think each of your offices are extremely important to the
work that is done at EPA and I wish you well with your
confirmation. I would like to take a second to highlight the
links between your offices and the State of New Mexico.
With regard to Mr. Kopocis and the Office of Water, I will
be very interested in hearing your views on water issues. The
entire State of New Mexico is in a severe drought, with 86
percent of the drought considered extreme. We are in first
place when it comes to suffering from drought. We aren't proud
of this designation. The Office of Water is therefore
incredibly important to us to ensure that our drinking water is
safe and our watersheds are restored safely to protect human
health, support economic and recreational activities, and
provide healthy habitats for wildlife.
With regard to Mr. Jones and the Office of Chemical Safety
and Pollution Prevention, your office's mission is to protect
families and the environment from potential risks from
pesticides and toxic chemicals. Your position and office is of
further interest right now given the ongoing debate about
reforming TSCA, the Toxic Substances Control Act of 1976.
And, of course, Mr. Garbow nominated to the General
Counsel's Office. This office provides the chief legal advice
to the EPA, providing legal support for Agency rules and
policies. This will be particularly important as the President
and EPA proceed down the path to writing global warming rules
and regulations to comply with the President's new strategy.
Madam Chair, I look forward to hearing from the nominees
and I hope I will be able to stay through all of them, but
there are several other things going on this morning.
But thank you very much for your service and appreciate
having you here today.
Thank you. Yield back, Madam Chair.
Senator Boxer. Thank you, Senator.
Senator Fischer.
OPENING STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM THE STATE OF NEBRASKA
Senator Fischer. Thank you, Madam Chairman, and thank you,
Ranking Member, for holding this hearing. And I would like to
thank all the nominees for your willingness to serve the
public.
I am pleased that we have a native Nebraskan here today,
Ken Kopocis, before the committee, and I was grateful for the
opportunity to meet with you before today's hearing to discuss
some of the concerns that we have in our State about water
issues, and to talk about the successes and the challenges EPA
has had under the Clean Water Act. I appreciated your
acknowledgment that for any given problem generally EPA's first
inclination to address it is with more regulation, and that is
not always very productive.
In Nebraska, particularly in agriculture, we have made
tremendous environmental progress because of collaborative
efforts. Farmers' and ranchers' application of new technology
and conservation practices, for instances, has resulted in
incredible improvements to our land, air, water quality. These
environmental gains are not the result of a permit or a mandate
or a paperwork requirement from a Federal bureaucracy; they are
result of cooperation between producers and local extension
educators and conservation agents. These are folks who farmers
trust to help them implement science-based solutions that
improve our efficiency and reduce our environment impact.
Nebraskans need an EPA that understands this and that will
look for ways to collaborate, rather than regulate, whenever
possible. Nebraskans also need an EPA that realizes people are
the most important resource, and the goal of environmental
protection should not be pursued at the expense of all others,
including housing, jobs, economic development, and individual
rights. When it comes to measuring our success, especially
under the Clean Water Act, we need an agency that won't factor
people out of the equation.
I am particularly concerned about the EPA's proposed
guidance to defined waters of the United States, which would
broaden the number and kinds of waters subject to regulation.
Expanding the Clean Water Act scope imposes costs on States and
localities as their own actions, such as transportation
improvements, flood control projects, and drainage ditch
maintenance, become subject to these new requirements. I am
hopeful EPA will formally withdraw its proposed guidance and
proceed with a formal rulemaking process that does respect the
limits of law.
Another important issue that crosscuts the potential work
of all the nominees before us today is stakeholder involvement.
Whether it is in the context of providing small businesses a
meaningful opportunity to participate in the stormwater
discharge rulemaking, bringing together stakeholders to fix the
dysfunctional process of Endangered Species Act's consultation
for pesticides approvals, or seeking input of property owners
and other affected parties when EPA intends to settle a
lawsuit, the Agency must do a better job of conducting its work
in a transparent and inclusive manner.
Again, I would like to thank you all for being here, and I
look forward to the questions. Thank you.
[The prepared statement of Senator Fischer follows:]
Statement of Hon. Deb Fischer,
U.S. Senator from the State of Nebraska
Thank you, Chairman Boxer and Ranking Member Vitter, for
holding today's nomination hearing. Thank you, nominees, for
being here and for your willingness to serve the public.
I am pleased that we have a native Nebraskan, Ken Kopocis,
before the committee today. I was grateful for the opportunity
to meet with him ahead of today's hearing to discuss some of
the concerns we have in our State about water issues and to
talk about the successes and challenges EPA has had under the
Clean Water Act.
I appreciated Mr. Kopocis's acknowledgment that for any
given problem, generally EPA's first inclination to address it
is with more regulation, and that is not always very
productive. In Nebraska, particularly in agriculture, we have
made tremendous environmental progress because of collaborative
efforts. Farmers' and ranchers' application of new technology
and conservation practices, for instance, has resulted in
incredible improvements to our land, air, and water quality.
These environmental gains are not the result of a permit or
a mandate or a paperwork requirement from a Federal
bureaucracy. They are a result of cooperation between producers
and local extension educators and conservation agents. These
are folks who farmers trust to help implement science-based
solutions that improve our efficiency and reduce our
environmental impact. Nebraskans need an EPA that understands
this and that will look for ways to collaborate--rather than
regulate--wherever possible.
Nebraskans also need an EPA that realizes people are the
most important resource and the goal of environmental
protection should not be pursued at the expense of all others,
including housing, jobs, economic development, and individual
rights. When it comes to measuring our success--especially
under the Clean Water Act, we need an agency that won't factor
people out of the equation.
I am particularly concerned about EPA's proposed guidance
to define ``waters of the United States,'' which would broaden
the number and kinds of waters subject to regulation. Expanding
the Clean Water Act's scope imposes costs on States and
localities as their own actions--such as transportation
improvements, flood control projects, and drainage ditch
maintenance--become subject to new requirements. I am hopeful
EPA will formally withdraw its proposed guidance and proceed
with a formal rulemaking process that respects the limits of
the law.
Another important issue that crosscuts the potential work
of all the nominees before us today is stakeholder involvement.
Whether it is in the context of providing small businesses a
meaningful opportunity to participate in the stormwater
discharge rulemaking, bringing together stakeholders to fix the
dysfunctional process of Endangered Species Act consultations
for pesticide approvals, or seeking input of property owners
and other affected parties when EPA intends to settle a
lawsuit, the agency must do a better job of conducting its work
in a transparent and inclusive manner.
Mr. Kopocis, Mr. Jones, and Mr. Garbow, thank you again for
being here today. I look forward to questioning you about how
we can work together to address these important objectives.
Senator Boxer. Thank you.
Thank you all for your comments. We will go now to the
panel.
Mr. Kopocis, this is deja vu all over again, I hope with a
happy ending this time. This is a rewrite and we are so happy
to see you here. Again, I want to thank you for your work in
this committee, and I just would pray and hope that just given
your goodwill and the way you work with both sides of the
aisle, that hopefully this will have a better outcome for you.
So please proceed.
STATEMENT OF KENNETH KOPOCIS, NOMINATED TO BE ASSISTANT
ADMINISTRATOR FOR THE OFFICE OF WATER, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Mr. Kopocis. Thank you. Thank you, Chairman Boxer. Good
morning to you, Ranking Member Vitter, and other members of the
committee.
Before I begin my prepared remarks, I would like to
acknowledge who are with me here today. My wife Chris. She has
been my wife for 33 years. My daughter Kim, who is the mother
of the most delightful 3-year-old little girl you would ever
want to meet, or at least I would ever want to meet, and Hayden
Payne. My son Jeff and his wife Taylor are not able to be with
us today, and they are the parents of the cutest 6-week-old
little girl that you would ever want to meet.
I am honored and humbled to appear before you today. I have
many memories of sitting in this very room as either a Senate
or a House committee staffer, and that was during my nearly 27
years on Capitol Hill. While I have sat at this table many
times in deliberations and discussions, this is a distinct
perspective.
The greatest rewards in my career have been in assisting
both Senators and Representatives in developing bicameral,
bipartisan legislation to address the Nation's critical water
resources and water quality needs.
However, despite those accomplishments and their many
rewards, it is my greatest privilege to sit before you as the
President's nominee for the Assistant Administrator for EPA's
Office of Water. If I am confirmed, I hope that I can fulfill
both the President's and Administrator McCarthy's confidence in
me.
I have spent the majority of my professional life working
to address the Nation's most serious water needs. These include
successfully working on eight Water Resources Development Acts;
the Water Quality Act of 1987, which Senator Cardin mentioned,
to strengthen the Nation's commitment to clean water;
protecting and restoring the Everglades and the Florida Keys;
ending the practice of using our oceans as dumping grounds for
sewage sludge and garbage; the oil pollution prevention,
preparedness and response activities following the tragic spill
of the Exxon Valdez in 1989; and developing targeted programs
for the Great Lakes, Chesapeake Bay, Long Island Sound,
California's Bay-Delta estuary, Lake Pontchartrain and the Gulf
of Mexico, the Tijuana River Valley, San Diego's beaches, and
the U.S.-Mexico border region.
I am proud to have had a role in protecting the Nation's
beaches and restoring our economically vital estuaries,
addressing the impacts of invasive or non-indigenous species,
and cleaning up hazardous waste and returning our Nation's
industrial legacy to productive use through the Nation's
Brownfields program.
Now, the Nation has made great strides in protecting public
health and enhancing the environment while simultaneously
growing the economy, but we have yet, as a Nation, to achieve
the objective established by Congress in 1972 of restoring and
maintaining the chemical, physical, and biological integrity of
the Nation's waters. If approved by this committee and
confirmed by the Senate, it is my intent to work with all
toward achieving that objective for this and future
generations.
In my work on the Hill, I had the privilege of working on
legislation that, while sometimes controversial, always enjoyed
bipartisan support. I learned that true success requires
ensuring cooperation and collaboration among all interested and
necessary parties. I have always attempted to approach issues
with an open mind, interacting with members of the public,
State and local officials, and interest groups on legislative
and program development and implementation issues; and
analyzing facts and the law to develop solutions to national
and local problems.
Chairman Boxer and Ranking Member Vitter, your recent work
on the Water Resources Development Act of 2013 is a tangible
demonstration of working together for a common goal.
I learned on Capitol Hill that your allies do not always
have the correct answer, and that the advocates on the other
side of an issue are not always wrong. It should be possible to
achieve one's stated goals and respect the legitimate
perspective of others in the debate. I have observed too often
that people hear, but do not listen. If approved and confirmed,
you can count on me to listen to all perspectives and views in
the debate.
I believe that we all share a common goal of clean and
healthy waters. We demand the confidence that when we turn the
tap anywhere in the United States, that there will be an
abundant and safe supply of drinking water. We can restore and
protect our precious resources such as the California Bay
Delta, Everglades, Chesapeake Bay, Lake Pontchartrain and the
Gulf Coast, the Great Lakes, and the Long Island Sound. We can
swim at our beaches and eat the fish that we catch. And we can
create opportunities for the next generation that exceed those
that were present for us.
Thank you, and I welcome any questions that you may have.
[The prepared statement of Mr. Kopocis follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you so much, Mr. Kopocis.
Mr. Jones.
STATEMENT OF JAMES JONES, NOMINATED TO BE ASSISTANT
ADMINISTRATOR FOR THE OFFICE OF CHEMICAL SAFETY AND POLLUTION
PREVENTION, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Jones. Good morning Chairman Boxer, Ranking Member
Vitter, and other members of the committee.
I am greatly honored to appear before you today as
President Obama's nominee for Assistant Administrator of the
Office of Chemical Safety and Pollution Prevention at EPA.
With me today are my wife, Amalia, and our daughter Lena.
Our son Marcellus is away at soccer camp, so he is unable to be
with us here today, but I am sure his sister will fill him in
on all the excitement.
For 26 years, I have served as a career employee of EPA.
The majority of this time has been spent in furthering chemical
safety. Over 17 years ago, I was engaged in the development of
the Food Quality Protection Act. This law, which passed with
bipartisan support, required EPA to evaluate all food use
pesticides against a risk based standard within 10 years.
Although few thought the Agency would be able to meet such an
ambitious schedule, we did just that. Although some pesticides
were completely eliminated from use in the U.S., for many
others, EPA, working with stakeholders, was able to find common
sense, cost-effective ways to reduce exposure and meet the
rigorous safety standard. I am proud to have played a role,
along with many other dedicated and talented EPA staff, in
ensuring food safety in the United States. Some of the most
salient lessons I learned in this experience were the
importance of sound science as the underpinning of our
decisions and the power of transparency in our processes.
More recently, my efforts in furthering chemical safety
have focused on the implementation of the Toxic Substances
Control Act, or TSCA. At the beginning of the Obama
administration, I was an active participant in the development
of the Administration's principles for TSCA reform. It has been
very encouraging to see similar principles articulated by
industry and public interest stakeholders. I look forward to
working with this committee on modernizing TSCA to ensure the
safety of chemicals in consumer and commercial products.
As important as TSCA reform is to a robust chemical safety
program in the U.S., I believe it is important for EPA to use
the existing tools it has to ensure chemical safety. We are
assessing the risk for those chemicals which we know present
hazards and to which we know people are exposed. We have
developed a workplan for these chemicals and have published the
first five draft risk assessments. More risk assessments are
coming. We are also increasing the availability and the
accessibility of information so that manufacturers, their
customers, and the public can make informed choices about
chemicals and products. Last year we published the first ever
Safer Chemicals Ingredients List, which now has over 600
chemicals, and we are adding to this list. In the coming weeks,
we will launch a website that will allow industry and the
public easier access to health, safety and other data on TSCA
chemicals.
I also believe that preventing pollution in the first place
is a preferable approach to achieving chemical safety. Over the
years, I have promoted and participated in programs that work
with industry and the public to make environmentally preferable
choices. These programs have payoffs that far exceed the
minimal resources used to initiate them.
I am proud to have had a role in furthering chemical safety
of this Nation. Ensuring chemical safety, maintaining public
confidence that EPA is protecting the American people and our
environment, and promoting our global leadership in chemicals
management remain top priorities for me. If confirmed, I look
forward to working with this committee, especially in the area
of TSCA reform.
Thank you, and I appreciate your questions.
[The prepared statement of Mr. Jones follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you.
And Mr. Garbow.
STATEMENT OF AVI GARBOW, NOMINATED TO BE GENERAL COUNSEL, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Garbow. Thank you, Chairman Boxer.
I would first like to express my appreciation to you and
Ranking Member Vitter for holding the hearing. I am also
grateful to those committee members and their staff who met
with me in anticipation of this hearing.
I would like to take a moment to recognize and thank
members of my family, some of whom are here with me today. My
wife, Nancy Anderson, my son Tai, my daughter Cady. My oldest
son Dylan is hopefully having a great time at sleep-away camp,
so is not here today. My folks, Mel and Dene, and my sister
Rachel. To each of them, I am grateful for their love, support,
and sacrifice for allowing me to do what I think is important
and worthy of my kids.
I am also honored that President Obama has nominated me to
serve as General Counsel for the U.S. Environmental Protection
Agency and, if confirmed, will do my utmost in helping the
Agency keep the promise of its vital mission, with fidelity to
the law, and will always strive to earn and hold the confidence
of the President and of Administrator McCarthy in leading the
Office of General Counsel.
My legal career has spanned over 20 years, with a focus on
environmental law, and I have held numerous positions in both
government service and in the private sector. I should say that
every client I have had and every stop I have made along the
way has made me a better lawyer, a better manager, and a better
public servant.
In 1992, I joined EPA's Office of Enforcement and from that
perch learned about the inner workings of Agency rulemakings
and saw both the challenges of implementing many provisions of
our environmental laws, but also the many successes that result
from working with Federal, State, and local partners and other
stakeholders to ensure that the benefits and protections of our
environmental laws are more fully realized.
In 1997 I joined the Justice Department and because a
prosecutor in the Environmental Crimes Section. I thought then,
as I do now, that serving in that capacity carried with it an
awesome responsibility: to prosecute cases on behalf of the
United States with integrity, with constant attention to
detail, but also to decline matters when justice so required.
When I left the Department of Justice in 2002, I then
worked as a Junior Partner and a Partner, respectively, at two
law firms. I had the opportunity to represent individuals,
small and large businesses; I provided legal counsel in the
homes, businesses, and board rooms of clients; I advocated in
courts across the Country, and the opportunity to work in the
private sector, for me, enhanced my professional growth. I
gained a better understanding of how and why the legal issues
that I confronted, whether large or small, were consequential
for each of the individuals and businesses with whom I worked,
and that is a lesson I carry with me today.
In 2009 I had the privilege of returning to EPA, where I
presently serve as Deputy General Counsel. I should note that,
upon my return, I received an email from a colleague that
simply said, ``Welcome home.'' And it was a sentiment that
reminded me of my deep commitment both to the mission of EPA
and makes even more humbling the occasion of my nomination.
In the past 4 years, I have worked on significant matters
with nearly every office in the Agency, on issues that have
touched each of its regions and all of your States. We have
worked closely with our esteemed colleagues in the Justice
Department to defend the Agency's actions when challenged in
the courts of law and, above all, it has been my pleasure and
privilege to work with and help to lead the extraordinarily
talented and dedicated lawyers and other professionals who work
in EPA's Office of General Counsel.
In every instance where I or the Office have been called
upon to render legal advice, we have adhered to the principles
that our legal analysis and judgment must be presented with
candor, be unvarnished, and always directed to the faithful
implementation and administration of our Nation's environmental
laws. The key environmental laws are, by design, confining in
certain respects regarding Agency action, but other provisions
of law allow for greater discretion, placing great weight on
scientific findings and the judgment of the Administrator. But
in either case, I think the Office of General Counsel must
continually challenge itself to confront and account for any
ideas, interests, or perspectives that may shed light on both
well-trodden and new legal paths available to achieve the goals
of our laws.
So, if confirmed, I look forward to engaging constructively
with Congress, with stakeholders, and with members of the
general public on matters that are within the purview of the
Office of General Counsel. I commit to listen carefully to all
who may seek to advance legal arguments or interpretations that
can help our Office provide sound legal advice to Administrator
McCarthy, our clients within EPA, and others within the
Administration.
Thank you again, Chairman Boxer, Ranking Member Vitter, and
the other distinguished members of the committee, and I welcome
any questions that you might have.
[The prepared statement of Mr. Garbow follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you so much. So I just want to thank
colleagues for being here today because I just can't imagine
how anyone here listening to each of you could question your
qualifications, your experience, and, frankly, your humility
that you bring to the table; and it is so refreshing and I am
so hopeful we can make this work for you and for your families.
I also want to ask the families and the friends who are
here with our nominees to stand, if they would, for a moment.
Please stand up, family and friends. And to the young people
who are here, we are just so proud of your family member for
taking on this challenge, and I thank all of you for being here
today because you make your sacrifices. Please sit, and thank
you very much.
I want to start with our legal counsel.
Mr. Garbow, what impresses is the breadth of experience
that you have, particularly as I listen to my colleagues on the
other side, their concerns, because I think the fact that you
did take a break and you did go to the private sector should
give them a good feeling that you know how life looks from that
side. And I place into the record--I know you worked for Wilmer
Hale--the breadth of their clientele, some of whom were Boeing,
Citi Group, Chrysler, General Electric, Monsanto, Kodak, and
banks, etcetera. And I do feel, this is very critical, that
when you do your recommendations, you said it well yourself,
you have to be, of course, confined to the law, but there are
times when you will make a decision that is your best reading
of it and how it will work best.
So I am going to ask you this question: Is it the job of
the general counsel to make policy or to advise policymakers on
the applicable legal requirements when implementing our
Nation's environmental laws?
Mr. Garbow. Thank you, Chairman Boxer. I don't think that
it is the general counsel's position, if you will, to make
policy at the Agency. I think lawyers function best, and
certainly the general counsel, I think, functions best at the
Agency when he or she is able to provide legal advice to inform
and guide policy decisions. But I do not view our office as
being a house, if you will, for making such decisions.
Senator Boxer. That is very important to our colleagues and
to all of us, because that is the point, and that is why we
need someone there with your type of background who sees it
from all the various lenses, and I am hopeful that you will
gain support for this position.
Mr. Jones, as you heard, we are going to take a look at
reforming TSCA. There are two recent bills that were
introduced, both by Senator Lautenberg, and other bills that
have been reported on TSCA in other committees. We are going to
have an all-day hearing next week. And I know you don't take
position on any of the bills, but will you be ready to give us
the technical advice? Because we will be crafting a compromise
and we are going to need your help. Would you be ready,
willing, and able to help us through that, given all your
experience?
Mr. Jones. Thank you, Chairman Boxer. I very much look
forward to providing the committee any technical advice that
you need as you craft a TSCA reform bill.
Senator Boxer. Thank you.
And Mr. Kopocis, I just want to say you should be voted out
of this committee with enthusiasm. And I know people are very
concerned, and they should be, and so am I, about the
definition of waters of the United States. We could all come up
with our own definition. I know what I would like mine to be,
given my State. I am sure Senator Fischer knows what she would
like it to be, and on and on. Each of us would have our own
definition of where there should be some Federal regulation. At
the end of the day, it is going to be done, after you review
many, many comments, as I understand it, that are coming in by
the hundreds, if not by the thousands.
I am not going to ask you a question. I am going to keep
the record open and I am going to have some written questions
for all of you to answer, please; about a total of 10 for all
combined.
But when I go back to 2007 and the breakthrough work that
Senator Inhofe and I were able to do on the WRDA bill, I have
to tell the committee something. It was Ken Kopocis who said
Louisiana is in trouble. It was Ken Kopocis who said we need to
look at how we can help them post-Katrina. You know, it wasn't
easy for a lot of us, we all have our problems, but it was Ken
Kopocis who said this is what you really need to do. It had
nothing to do with partisanship or anything else.
And I remember your work getting that done, it was so
difficult, and working with all of us to get it done. So I
would just hope, again, that when we come down to--people can
vote no in protest. Lord knows I have done that enough times in
my life, voted no in protest. But we need to move these
through. Right now I know, Ken, you are working as a
consultant, as I understand it, to the EPA, and we have an
acting person. That is terrific, but I think when there is
frustration--and I feel it here in the committee, and I don't
have any problem with it because, indeed, these are very
important issues--you want someone that you can go to who has
that confirmation behind him or her so you can hold them
accountable. So I am hopeful that we will move all of these
quickly, these nominees.
Senator Vitter.
Senator Vitter. Madam Chair, Senator Inhofe has to go to
another engagement, so I am going to let him go now.
Senator Boxer. Sure.
Senator Inhofe. Thank you, Madam Chairman, and thank you,
Senator Vitter.
Mr. Garbow, in our meeting that we had in my office, we had
the opportunity to discuss the 6th Circuit Court decision I
mentioned in my opening statement. I trust you have had an
opportunity to review that case since that time. Now, since the
letter of the law and the court's opinion are so clear, what is
your position now? Are you going to be willing to expand the
6th Circuit decision nationwide so that there is a clear
regulatory standard? And the reason I ask that, I mentioned
that in my opening statement, I also mentioned that there are
other cases where the reverse was true. So what is going to be
your attitude now in that case?
Mr. Garbow. Senator, thank you for the question, and I do
recall discussing this at our meeting and I did, as I said I
would, undertake to find out more about both the case and the
memo that you describe. As you know, the case dealt with the
circuit court's interpretation of an Agency regulation dealing
with the relationship, if you will, between an oil and gas
sweetening plant and some wells for purposes of a
determination; and there was, I think, after that circuit
decision, with counsel of the Justice Department and obviously
discussions with the client, a decision made, as evidenced by a
memo that you referenced, to only apply that decision within
the 6th Circuit.
I should point out that I don't think that that practice,
if you will, is limited to either our Agency or, for that
matter, this Administration; it, I think, finds support as well
in just the general notion of the Federal system, where
different circuit courts approach things differently, as you
may have heard, a law of a circuit, things are different.
So what I can commit, Senator, to do is to go back to that
memo. I understand that it was to be conveyed to States and
potential permit applicants to see how it is being implemented,
if you will, elsewhere in the Country. Certainly, in future
instances like this, if confirmed, I would look very carefully
at the pros and cons for taking this approach. I think, above
all, my concern, Senator, if confirmed, would be not only to
ensure that we got some consistency and a good understanding of
why we are applying decisions one way versus the other, but
primarily to make sure that the Agency operates, again, as
Senator Vitter has pointed out, in a transparent way; that we
communicate with clarity.
Senator Inhofe. OK, I am really sorry, but my time has
almost expired just on this one answer. Is it yes or no?
Mr. Garbow. I will go back and look at the memo, Senator,
and explore the case. I cannot commit right now.
Senator Inhofe. OK. That is fine.
Senator Cardin mentioned, Mr. Kopocis, you and I, actually,
we came in the same year, so we were with you in 1987. It has
been a long friendship, I might add. You are aware that
agencies tried to link the hydraulic fracturing to groundwater
contaminations three different times. I mentioned this,
Pavilion in Wyoming, Debbick in Pennsylvania, Range Resources.
And then, of course, Senator Crapo talked about the most
egregious case out there. And this is the same question that I
asked Lisa Jackson some time ago. Are you aware of any
documented cases of groundwater contamination being
definitively caused by hydraulic fracturing? Short answer, if
you would, please.
Mr. Kopocis. No, I am not.
Senator Inhofe. Thank you very much.
I have a question for all three of you having to do with
the sue and settle issue. It has really been concerning to me,
but I was encouraged that the Agency recently allowed the
National Association of Manufacturers to be at least somewhat
involved in a recent lawsuit involving the development of the
new ozone standard. The question for all three of you, and, if
you would like, you can go ahead and answer it for the record,
but be really definitive. Will you commit to engaging with
industry groups that will be affected by settlement agreements
with non-Governmental organizations before those agreements
have been entered into? If you would like to give me a short
answer now, that is fine; if not, for the record would be fine.
Mr. Garbow. If I may, Senator, with respect to your
question, I will commit to have, if confirmed, an open door and
respond to any requests to meet and----
Senator Inhofe. OK, that is a good answer. That is a good
answer.
Anybody else agree with that?
Mr. Kopocis. Well, I would say that that has been my track
record. I have always been willing to listen to anybody's point
of view, and that would certainly continue if I were confirmed.
Senator Inhofe. I appreciate that very much.
Mr. Jones.
Mr. Jones. Same answer applies to myself. Thank you, sir.
Senator Inhofe. Very good.
Thank you very much, Madam Chairman.
Senator Boxer. Thank you so much, Senator.
Senator Whitehouse.
Senator Whitehouse. Just to follow up on Senator Inhofe's
questioning. I assume that in the case of litigation that is
brought by corporations and by industry and by polluters and so
forth, that you would be equally willing, on a reciprocal
basis, to make sure that whatever courtesies are offered
industry in environmental litigation, the same courtesies are
offered to environmental organizations in corporate-driven
litigation.
Mr. Garbow. Senator, I can commit to basically look with
neutrality, if you will, as to each complaint. It really
doesn't matter, I think, to the Agency, nor would it to me, if
confirmed as general counsel, whether a plaintiff comes from an
industry trade association or an environmental group. I think
that, in applying the law, we need to both, in rendering our
own legal judgments and working with the Justice Department, be
both impartial and treat each side, if you will, with equal
respect.
Senator Whitehouse. Mr. Kopocis, as you know from our
discussion in my office, I am concerned about the problem of
stormwater runoff into Narragansett Bay. We have spent, I don't
have the number ready to mind, but I want to say north of $160
million in our State to build a combined sewer overflow
facility that can protect the Bay. We are now seeing
significant improvements. The line above which you are not
allowed to keep shellfish you have caught has moved north. The
line above which it is not safe to swim has moved north. The
Blackstone River and the Providence River have been opened to
fishing. So we are moving in the right direction, but we have
virtually all of Narragansett Bay, but only 40 percent of the
watershed. And if our friends in Massachusetts continue to dump
stormwater runoff into the rivers that flow through Rhode
Island and into our Bay, they get the benefit of not having to
spend the money; we pay the price with our Bay. It is a little
bit like being a downwind State under the Clean Air Act, where
the dirty States upwind enjoy burning cheap goal, they build
great big smokestacks so that their people are protected and
they dump their pollution on my State and we end up with kids
in the hospital in my State. Not a great circumstance.
So on the water side, particularly in light of the delays
we have seen in the Chesapeake rule that had been the subject
of an agreement with an organization down here, where do we
stand and how are we going to move forward on stormwater
runoff?
Mr. Kopocis. Well, thank you very much for the question,
Senator Whitehouse, and I do recall our good discussion when we
met in your office. The Agency is actively working on revisions
to its stormwater rule. It is trying to take a new look at the
stormwater issues and develop new approaches that can provide
not only the water quality benefits that I believe everybody
seeks, but also understand that there are additional benefits
associated with controlling stormwater, in some instances which
create an incentive for these upstream communities that you
have in your circumstance to undertake efforts to address
stormwater.
The Agency has been working with communities, been working
with the national associations associated with communities,
etcetera, to try to develop this suite of options. The Agency
is looking to move from the more traditional, what we call the
grey infrastructure, which for years was basically how quickly
can you have a pipe that takes the stormwater and throws it
downstream, with little regard for the impacts downstream, and,
instead, looking at green infrastructure, which retains more of
that stormwater onsite, lessens downstream flows, and, of
course, reduces the amount of pollution that might be
introduced downstream.
The Agency has identified a lot of ancillary benefits
associated with that. As you said, reducing stormwater, but
also for CSOs. If less water is introduced into the system,
there are fewer problems with combined sewer overflows. It can
also serve benefits such as groundwater recharge, reduced
flooding, reduced erosion and siltation. Recreational values.
Many communities are moving back to the water and they want to
take advantage of those kinds of values. Improved air quality,
reduction----
Senator Whitehouse. So what will you be doing to achieve
those values with the stormwater runoff rules?
Mr. Kopocis. Well, in the stormwater runoff rule, what we
are trying to do is fashion a way to encourage those kinds of
activities that will keep stormwater where it falls, rather
than have it be rapidly sent downstream. In your instance, I
know a good deal of the runoff for Rhode Island comes from
Massachusetts.
Senator Whitehouse. Short of filing an original action in
the U.S. Supreme Court and suing them directly under the
Constitution, you are all we have got. That is why EPA is
important and I look forward to working with you on this. My
time has expired.
Mr. Kopocis. Thank you very much.
Senator Boxer. Senator Vitter.
Senator Vitter. Thank you, Madam Chair.
Mr. Kopocis, would you agree that this waters of the United
States issue is certainly very significant and important by any
standard and is a significant threshold jurisdictional issue?
Mr. Kopocis. Yes, sir, I would.
Senator Vitter. Given that, what is the argument for
deciding this by mere guidance? What is the advantage, apart
from ease for EPA, apart from minimizing legal ability to
challenge whatever EPA comes up with?
Mr. Kopocis. Well, thank you for the question, Senator. I
think that the decision of the Agency to move forward on
guidance was made with the belief that it would most benefit
both the regulated community and the regulators to provide some
greater clarity in the application of the jurisdiction of the
Clean Water Act following the two decisions of the Supreme
Court in SWANCC and Rapanos.
Senator Vitter. I don't want to interrupt you; you can
certainly finish your answer, but I want to be cognizant of the
time. But my specific question is why guidance and not a formal
rulemaking, given the clearly significant nature of this
decision?
Mr. Kopocis. Senator, the decision to move forward on the
guidance was made before I was with the Agency, and the Agency
has also been simultaneously moving to develop a rule. I should
always point out that both the guidance and the rule would be
an action done jointly by both EPA and the Army Corps of
Engineers, since it is a program which is jointly administered
by the two agencies. But the agencies are moving forward to
develop a rule to submit to OMB that would then be put out for
public notice and comment.
Senator Vitter. What is your understanding of the reason
they are doing this by guidance, at least first? Even though it
predates you, what is the advantage of doing that versus what
would seem to be natural for something this significant, which
is a rulemaking?
Mr. Kopocis. The use of guidance, of course, is not
unusual. Following the two Supreme Court cases, the prior
administration issued guidance to try to help the regulated
community understand the impact of those decisions. It is
administratively easier to issue guidance, and my understanding
was that both agencies were seeking to provide greater clarity
in a more timely fashion, and then would follow up with formal
rulemaking action.
Senator Vitter. What is the specific legal authority for
doing something this significant by guidance?
And I would ask Mr. Garbow to answer the same question.
Mr. Kopocis. Well, the Agency has general authority to
issue guidance or to issue other interpretive documents
associated with both the statutes or the regulations that it
administers, so that would have been the authority. I am
unaware, and I will defer to our Office of General Counsel, but
I am unaware of any specific statutory authority in the Clean
Water Act in relation to guidance. There is specific authority
in the Clean Water Act for the Agency to issue regulations.
Senator Vitter. Mr. Garbow, what is the specific authority
for doing something this significant by guidance?
Mr. Garbow. Senator Vitter, I don't have a different answer
than Mr. Kopocis gave. My understanding is that the authority
to issue the guidance can be found in part perhaps in the
Administrative Procedure Act. But I am unaware of anything, for
example, in the Clean Water Act that speaks directly to the
selection of a guidance versus a rulemaking as a mechanism.
Senator Vitter. There is certainly specific language in the
Clean Water Act regarding rulemaking, correct?
Mr. Garbow. I believe that is correct, of course.
Senator Vitter. OK. Well, again, this is extremely
troubling for all of us on the Republican side, and I think you
hit the nail on the head when you said, in your last answer,
Mr. Kopocis, that it is easier for the EPA. It sure is. There
is a lot less opportunity for input and challenge, and it is
easier for the EPA. That is not compelling, in my mind.
Mr. Kopocis, on the issue of Pebble Mine, we are also very,
very troubled by this preemptive watershed assessment, which is
completely unnecessary, not mandated by the law. How much money
has EPA spent to date on this preemptive watershed assessment?
Mr. Kopocis. Senator, my understanding is that the agency,
through earlier this year, has spent approximately $2.4 million
in external costs. I do not know of an estimate of internal
cost to the Agency.
Senator Vitter. OK. That is the figure I have for external
contract work. Also, $170,000 on a conference for peer
reviewers. But you are right, that doesn't include anything
internal. That is very significant, so what is the rationale
for doing something that is not mandated, that is not
necessary, and that is preemptive?
Mr. Kopocis. Well, approximately 3 years ago the Agency was
petitioned by a number of residents and entities in Alaska to
exercise its authority under 404 to stop a permit from being
issued for a proposed Pebble Mine. The agency chose to not
favorably respond to that petition, but instead decided to take
up the assessment, which is currently underway. It was based in
part upon the level of interest associated with that proposed
mine, the size of the proposed mine, and the significance of
the resources in the Bristol Bay watershed that could be
affected.
Senator Vitter. Well, again, in closing, Madam Chair, let
me just say that this is completely preemptive and unnecessary,
and we think it would be far more constructive for the EPA to
do what is in the law, react to a specific permit application.
Senator Boxer. Thank you, Senator.
Senator Fischer.
Senator Fischer. Thank you, Madam Chair.
Mr. Kopocis, I am sure that you understand the concerns
that our farmers have with the guidance proposal that Senator
Vitter was talking about. I would like to ask you about a
document that I found on your website that states that
agricultural exemptions will remain under the proposed
guidance. Are you familiar with that document? It is the
Agricultural Exemptions Remain.
Mr. Kopocis. OK. I am not sure exactly what document, but I
am very familiar with the agricultural exemptions that are in
the Clean Water Act, yes.
Senator Fischer. OK.
Madam Chair, if I could have that entered into the record,
the document.
Senator Boxer. Without objection, so ordered.
[The referenced document follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Fischer. Thank you so much.
The document states in part, ``The guidance does not
address the regulatory exclusions from coverage under the CWA
for waste treatment systems and prior converted crop land, or
practices for identifying waste treatment systems and prior
converted crop land.''
So, based on that statement, I am not clear whether the
well-recognized regulatory exemption for prior converted crop
lands would remain in place under this proposed guidance. Can
you tell me if the guidance is going to affect that in any way
for the prior converted crop lands exemption?
Mr. Kopocis. Well, I can say, of course, a final guidance
document has not been issued, but there has been no attempt in
either the draft guidance or in the documents that are
currently under consideration to in any way adversely affect
the current exemptions for prior converted crop land.
Senator Fischer. So you are telling me that exemption would
still remain for that prior converted crop land, in your
opinion right now?
Mr. Kopocis. Yes. That is the current working theory within
the Agency, yes.
Senator Fischer. OK. What if you have prior converted crop
land and it is converted to a non-agricultural use? Would the
farmer lose that exemption just because he decides that he is
going to use his property in another manner?
Mr. Kopocis. Well, the nature of the exemption would depend
on what that post-crop activity might be. There might be a need
for a permit or it may be an activity which continues to not
need a permit.
Senator Fischer. Can you give me an example of what an
activity would be that wouldn't require a permit?
Mr. Kopocis. Well, there are a number of exemptions from
the permit program from the 404 permit program that are in
Section 404(f). They are a variety of activities associated, a
lot of them substantially associated with agriculture, but
others have to deal with maintenance of stormwater ditches.
Those kinds of things are also activities which would not need
a permit, irrespective of whether the land was in an
agricultural use or not.
Senator Fischer. Thank you. In February, the EPA released a
draft of its national rivers and stream assessment, and it
attempts to survey the ecological conditions of streams and
rivers throughout the Country. As EPA's headline in a press
release announced to the American public, the Agency found in
the assessment that more than half of the Nation's rivers and
streams are in poor condition, and the EPA's Office of Water
Acting Assistant Administrator Nancy Stoner stated that
America's streams and rivers are under significant pressure,
although she didn't elaborate, necessarily, on who or what is
putting pressure on these waterways. The implicit suggestion,
from reading that report, is that agriculture and industry are
the culprits.
I have a problem with that assessment. I think to determine
water quality conditions across the Country, when we looked at
that, EPA compared the sampling results with conditions at
least disturbed sites around the Country in different regions,
and according to the EPA, this least disturbed benchmark
standard is defined as those sites that are least disturbed by
human activities, so it is water bodies where humans really
aren't. I think that creates a problem on how the assessment is
made.
Do you think that that needs to be looked at, on what
benchmark we are using so it gives us a more realistic
assessment?
Mr. Kopocis. Senator, thank you. I know that there have
been a number of questions raised about the way EPA developed
its benchmarks for conducting the water quality assessment. If
confirmed, I can commit to going back, asking our people to
take another look at that and reconfirming what is the
appropriate way for EPA to set benchmarks for conducting this
assessment. But as we all know, it has been very important for
many years to answer the question of how well are we doing, and
I think that was a big component of what the Agency was trying
to do. I think it is very valuable information and I can commit
to working with you on that.
Senator Fischer. Thank you so much. I appreciate it.
Thank you, Madam Chair.
Senator Boxer. Thanks. Coming from my great State, that has
so much agriculture, a huge amount, probably 600 different
specialty crops at this point, when land is converted for other
uses, for example, Senator Fischer, in our case we lose the
land, the ag land to heavy development. They move right under
the county and they have to abide by those rules. But if they
are going to continue with the kind of uses that you describe,
I think they can retain the benefits of that zoning. But I
thought that question was very important.
Senator Boozman.
Senator Boozman. Thank you, Madam Chair.
We appreciate all of you being here. It is especially good
to see you, Mr. Kopocis. I enjoyed very much working with you
on the House side.
I think the guidance thing really is important. Have past
administrations used guidance when it comes to something like
waters of the United States in the past, with such high stakes?
Mr. Kopocis. Yes. Both of the Supreme Court cases came out
during the prior administration, and they twice issued
guidance. One I believe was in 2003 following the SWANCC
decision, and then there was another one in 2008 following the
Rapanos decision of 2006.
Senator Boozman. OK. I do think that from a public policy
perspective it certainly would be good to have stakeholder
input, those that you are regulating, as you bring something
out of the importance of the guidance concerning the waters of
the United States. In the past there has been a real effort to
try and pass a law that would do what the guidance says.
Congress was not able to do that, and it does appear that this
is just a way to circumvent the will of Congress and I think
the will of the public without getting stakeholder input.
Mr. Kopocis, the one thing that is a bother to me is it
always seems like the Agency really touts the fact that they
are open to the States and the States make the decision, and
yet when it seems to be a decision that the State doesn't agree
with, then the EPA comes down and says, well, this is the way
it is going to be. Can you talk a little bit about cooperative
federalism and maybe give some examples of decisions that when
the States do disagree, that they should be allowed to go ahead
with that disagreement?
Mr. Kopocis. Well, thank you very much for the question.
Our environmental laws are set up with State partners. As you
are probably aware, for example, the Clean Water Act, the
permitting authority for that rests in 46 of the 50 States. So
they are the front-line entity that administers that Act. There
are comparable numbers for the Safe Drinking Water Act in terms
of ensuring that our water supplies are safe.
EPA and its regional offices, we like to think we work
collaboratively with the States. I will not suggest to you that
I haven't heard many instances over the years of some
frustration on the part of the States, but EPA is committed to
addressing the unique needs of the individual States. I know
that there are variabilities among our regions and among the
States in how the interaction exists between EPA and the
individual States, and, if I am confirmed, I am committed to
continuing in expanding those availabilities of flexibility and
a willingness to consider the circumstances of each of the
States.
Senator Boozman. So if the State of Arkansas, community in
Arkansas, working with the State, came up with a different
nutrient requirement than EPA, then the State would have the
ability to go forward with their requirement?
Mr. Kopocis. Actually, nutrients is an example where EPA
has been very interested in working with States to tailor the
nutrient requirements for that particular State. As you may
know, the Agency has been asked to come up with nationwide
criteria associated with nutrients and so far has chosen not to
do so. The Agency believes that there are opportunities for the
individual States to address their needs.
As is the case for the entirety of the Clean Water Act, EPA
does establish and publish national water quality criteria for
a variety of pollutants, but States are free to make
modifications to that. EPA does have an approval role for that,
but there are States that have chosen to do something other
than what EPA may have recommended. As I said, nutrients is one
that is a current issue that is of great importance to the
States and to water quality nationally, and we are working with
that.
Senator Boozman. I don't mean to interrupt, but one of the
frustrations I have, in fact, the administrator of D.C. Water
was in testifying not too long ago and he was talking about the
requirements put on them and the situation of possibly having
to implement another requirement that would cost $1 billion for
really what I think everyone agrees would be very, very little
good in the sense of increasing the quality of the water. That
is a huge problem; not only here, but throughout the Country.
Are you aware of that? Will you commit to addressing--and,
again, you have the difference within the regions.
Mr. Kopocis. Yes, Senator. If confirmed, I can commit to
continuing the dialog. I have had the pleasure of sitting in on
a meeting with the head of D.C. Water. He has a compelling case
which he has been making and now, of course, that situation is
subject to a consent decree which would require participation
beyond just EPA.
Senator Boozman. Thank you, Madam Chair.
Senator Boxer. Thank you.
Senator Cardin, your turn for questions.
Senator Cardin. Thank you, Madam Chair.
I thank all of our witnesses for their response to the
questions that have been asked by the members of the committee.
It is interesting. There is going to be different views on this
committee on the interpretation of laws. On navigable waters,
put me down for the Senator who believes that traditional
understanding is what should be done. We should regulate the
waters that are appropriate for public safety and health and
that the Administration is trying to move in that direction.
I also want to just underscore the point, Madam Chairman,
that I hear Senators on both sides of the aisle talk about the
importance of predictability, of getting guidance. They say
even if we don't like what the rules are, the public has to
know what the rules are; and I think this Administration is
trying to move in that direction to give some predictability to
the laws.
But on navigable waters, to me, what we always thought the
law to be, what the rule should be, made sense, and I would
hope that we would allow the Environmental Protection Agency to
carry out its responsibility.
The three individuals that are before us, their
qualifications have not been challenged by any member of this
committee. The record hasn't been challenged. They are in
public service because they believe in public service, and they
want to continue in public service. So none of that has really
been challenged.
The challenge appears to be in different interpretations on
how our laws should be applied. And that is legitimate. It is
legitimate for us as oversight to deal with that. But we are in
much stronger position, as the legislative branch of
Government, when we have a confirmed head of an agency to deal
with, rather than acting head of an agency.
And we can go through this again and continue to just have
acting heads, and we will continue to hear from the public
their outrage about the uncertainty and the lack of
accountability. We are in better shape if we carry out our
responsibility. And our responsibility is twofold here, Madam
Chairman. One is for us to consider these nominations based
upon their qualifications. And unless there is an extraordinary
reason to the contrary, none of which have been shown on these
three nominees, to allow an up or down vote on the floor of the
U.S. Senate in a timely manner.
Then, second our responsibility, and here is where I am
going to concur with my friends on the other side of the aisle,
we have an oversight responsibility. We have a responsibility
to challenge the way that the Administration is administering
the laws. We also have an opportunity to change those laws, and
we should take advantage of it. And I want to compliment the
Chair of this committee because she has been open to that
during her chairmanship. She has given every opportunity for us
to carry out our responsibilities.
But I get a little testy on this case because one of the
nominees has been waiting 2 years. He was nominated 2 years
ago. It is not like a person we don't know. We know him well
and we respect him greatly on both sides of the aisle. And the
challenge has been that some don't like the Agency. Not the
person, not the person's view, not the person's competency; we
don't like the Agency and we still believe that we can affect
that through the nomination process by holding up nominees,
which to me makes very little sense.
So, Madam Chair, I don't have any specific questions, but I
just wanted to underscore the point that I think we should
carry out our responsibility, and I strongly support the three
nominees and I hope that we can move them promptly to the
floor.
Senator Boxer. Thank you.
So I am going to ask each of you now to respond yes or nay
to each of these three questions.
Senator Boozman. Madam Chair. Madam Chair, could I just ask
that I have some additional questions?
Senator Boxer. We are going to have all the questions----
Senator Boozman. Not now, but to be submitted.
Senator Boxer. Oh, I am going to lay that out. We have to
get all the questions in by Thursday at 5 p.m. I am going to
ask the nominees please to answer them very quickly. I have
begun discussions staff-to-staff with Senator Vitter. We are
hoping, if those answers come back and there is some
satisfaction here, that we can move to a vote. We are hopeful,
very hopeful.
The answers from you, 10 a.m. on Monday.
But let me close by saying this. I know you are going to
laugh at this, but for this committee, both sides of the aisle,
you are a dream team, because Mr. Kopocis has worked on WRDA
2007 and worked in the most bipartisan fashion I have ever seen
to that point. Mr. Jones has served with, I believe, five
different Presidents--is that right?--over the years,
Republicans, Democrats. And Mr. Garbow has shown his interest
in public sector/private sector, working with some of the
biggest corporations. So there is no reason to hold it up.
So I am going to ask each of you do you agree, if
confirmed, to appear before this committee or designated
members of this committee and any other appropriate committees
of the Congress and provide information subject to appropriate
and necessary security protection with respect to your
responsibilities?
Mr. Kopocis. Yes, I do.
Mr. Jones. Yes.
Mr. Garbow. Yes.
Senator Boxer. Do you agree to ensure that testimony,
briefings, documents, and electronic and other forms of
communication of information are provided to this committee and
its staff and other appropriate committees in a timely fashion?
Mr. Kopocis. Yes.
Mr. Jones. Yes.
Mr. Garbow. Yes.
Senator Boxer. Do you know of any matters which you may or
may not have disclosed that might place you in any conflict of
interest if you are confirmed?
Mr. Kopocis. No.
Mr. Jones. No.
Mr. Garbow. No.
Senator Boxer. OK. I am going to turn the gavel over to
Senator Cardin because there are colleagues that still want to
do some more questions. I just want to say, and you can tell
from what I have said, that I am proud of you all, I am proud
of your families, and I really am going to do everything in my
power to personalize this, if it gets to that, to make the case
that we need you in your positions.
So, with that, I will call on Senator Vitter for his second
round and I will give the gavel to Senator Cardin, ask him to
move over here, if he would.
Senator Vitter. Thank you, Madam Chairman.
Mr. Garbow, as you know, a big set of concerns of
Republicans on the committee has been the need for increased
transparency and accountability. That touches a number of
different issue areas affecting your office, including handling
FOIA requests. One of the most disturbing emails we came across
in doing this work was about a FOIA request, and out of your
office, the top legal office of EPA came an email with regard
to a FOIA request: ``Unless something has changed, my
understanding is that there are some standard protocols we
usually follow in such FOIA requests. One of the first steps is
to alert the requester that they need to narrow their request
because it is over-broad and, secondarily, that it will
probably cost more than the amount of dollars they agreed to
pay. Unless and until they respond to that and tell us they
will pay more, we usually tell them in writing that we are
suspending our response to their request until they get back to
us.''
Now, this was not a suggestion about a specific request. As
is very clear, this is a description of ``standard protocols.''
Do you think that is appropriate?
Mr. Garbow. I do not, Senator, and I can tell you that, if
confirmed, the only standard of practice with respect to FOIA
that I will condone and promote in the Office of General
Counsel is to look at the request and to apply the law.
Senator Vitter. And in the case of this particular email,
what was the consequence of this advice and this email coming
from this individual in your office?
Mr. Garbow. I am unfamiliar with the email, Senator, so I
don't know what the consequence was.
Senator Vitter. Well, if you could get back to us regarding
any negative consequence related to that email because, to
date, I know of none.
Mr. Garbow. I will look into that, Senator.
Senator Vitter. And that is re-asking a question we sent in
writing 4 months ago and has not been responded to.
Now, pursuant to sort of discussion related to Gina
McCarthy's nomination, EPA has agreed to move forward with
mandatory retraining of their work force on FOIA, on records
management, on the use of personal email accounts, and you have
agreed to issue new guidance pending completion of an audit by
the inspector general. Can you apprise us of the progress of
all of that and your commitment to it?
Mr. Garbow. Senator, I would be happy to tell you what I
know. With respect to what I think is the inspector general's
audit dealing with electronic records management, it is my
understanding that we have not yet received a final report from
them. Our office will certainly carefully review it, and I look
forward to seeing whatever recommendations come from that
process.
With respect to FOIA training, it is my understanding
though the FOIA training is generally administered through a
different office at the Agency, that we have committed to you
and others to do Agency-wide FOIA training by the end of this
year. I have not heard that we are on any other schedule other
than that, but I don't have any further information to provide
you at this point in time.
Senator Vitter. OK. And what about your personal commitment
to these exercises?
Mr. Garbow. I am absolutely, Senator Vitter, committed to
ensuring that folks in the Agency are well trained, timely
trained on FOIA and any other matters of legal concern. I will,
of course, take our responsibilities in the General Counsel's
Office, if confirmed, very seriously. So I do think that we
ought to pursue these sorts of transparency things that I think
can enhance the interests of the United States.
Senator Vitter. And will the Office of General Counsel, and
you personally, be directly involved in all of that?
Mr. Garbow. Senator, I will be as involved as I can. I
don't know that our office has a pivotal role in each of the
items that you have mentioned, but I do think we do have a
role. We will certainly provide advice and support, both as
needed, and I will make it a special effort on my own, if
confirmed, to make sure to track and to look into those things.
Senator Vitter. OK, thank you. That is all I have.
Senator Cardin [presiding]. Senator Fischer.
Senator Fischer. Thank you, Senator.
I just have a short question for Mr. Jones and Mr. Garbow.
I didn't want you to feel left out or that I was slighting you
in any way, so I wanted you to be included.
Mr. Jones, I am concerned about the process for granting
partial exemptions from the chemical data reporting
requirements of the Toxic Substances Control Act. Although the
regulations anticipate a review period of 120 days, I know of
several people who are still waiting for a decision from EPA
after more than 600 days. I am asking if you will work with the
committee to find ways where we can reduce this problem, and
will you assure timely consideration of these petitions?
Mr. Jones. Thank you, Senator Fischer. Yes, the situation
that you are describing came to my attention just a week ago or
so. As you may know, we were, last year at this time, the
reporting was being required of manufacturers, and as we were
focusing on the reporting implementation, we lost sight of
someone was requesting an exemption for the next reporting
cycle, which is actually 2013 to 2016. It has been brought to
our attention and we are going to work to make a decision on
the exemption requests in front of us within the next month.
But I would be happy to work with the committee to ensure that
in the future we do not lose sight of timely requests of any
form.
Senator Fischer. Thank you. As you know, I am new to the
Senate, I am new to the committee, so I find the hearing
process needed for all members to have a chance to ask
questions and get the responses on the record, so thank you.
What specifically would you recommend doing to try and
expedite that process?
Mr. Jones. Thank you, Senator Fischer. So in this case I
think it was really about losing track of something in front of
us. The other crush of business became a distraction, so it is
really about ensuring we have appropriate tracking. If this had
been in front of management, I think we could have disposed of
it rather quickly. This particular request was not very
complex. But having an appropriate tracking system in place
would, I think, solve the problem.
Senator Fischer. Thank you, sir.
Mr. Garbow, I do appreciate you coming to my office, and I
appreciated the conversation that we were able to have there.
At that time I talked about the aerial surveillance over a
number of livestock operations in the State of Nebraska and the
concern that those people felt it was a violation of their
privacy. But there are also concerns because homes are near
these operations, so people have, I guess, a reasonable
expectation of privacy, especially with regards to their
families and their family home. How would you address those
concerns and where do you see this going in the future?
Mr. Garbow. Thank you, Senator, and I also appreciate the
conversation we were able to have when we last met.
I think that I and the Agency takes very seriously the
privacy concerns expressed by you on behalf of your
constituents and other Americans, and certainly with respect to
the issue of aerial overflights the key issue certainly that we
in the Office of General Counsel need to focus on is what
happens, if you will, to any records, pictures, etcetera, that
result from those activities. I think they need to be treated
with care. We need to examine, upon any request, whether there
are any exemptions relating to privacy or otherwise that might
apply to them, and I think we have to carefully apply the law.
So in terms of where this is heading, the actual
overflights are not run out of the Office of General Counsel. I
am certain that there is an important communication element, an
element relating to stakeholder involvement and understanding,
but I also think that we need to be very focused on those very
privacy concerns that you have addressed.
Senator Fischer. I guess I would ask you again, though,
where do you see it headed? Do you know that there was a
release of very private information, confidential information,
from a number of people involved in agriculture and that it was
called back? That doesn't make it better. It is not all good
that you release the information and you call it back. So what
are you going to put in place to make sure this doesn't happen
again?
Mr. Garbow. Thank you, Senator. The release that I think
you are referring to, of course, didn't happen in connection
with overflights.
Senator Fischer. The overflights, correct.
Mr. Garbow. It was a separate information request.
Senator Fischer. But you also commented on the information
you gained from these aerial surveillance and the privacy
concerns with those as well.
Mr. Garbow. That is right. I think at its core, Senator,
the Agency needs to carefully look at its FOIA practices. I
should also note that aside from the training that the Agency
is undergoing with respect to FOIA, including, of course, the
lawful of application of any and all exemptions, how we have to
look at those, that I have recently learned that our Inspector
General's Office will also be looking into Agency's practices
with respect to release of records. So we will look forward to
the results of that audit.
Senator Fischer. Thank you, and thank all three of you
gentlemen, and thank you to your families for being here today
and supporting them. Thank you so much.
Senator Cardin. I repeat our thanks for your patience and
your willingness to put your names forward to serve our Country
in a very important agency, the Environmental Protection
Agency.
The chairman has already announced the deadlines when
questions can be submitted for the record. We hope members will
exercise restraint here so that you can have a somewhat
peaceful weekend, but you never know.
Again, we thank you and, with that, the committee will
stand adjourned.
[Whereupon, at 11:43 a.m. the committee was adjourned.]
[Additional material submitted for the record follows:]