[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
  
  
  
  
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  
  



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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

                              ----------                              
                                                                   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:]
    
    
    
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    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:]
  
  
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    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:]
    
    
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    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:]