[Senate Hearing 114-303]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 114-303

    OVERSIGHT OF EPA UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL 
                              GOVERNMENTS

=======================================================================

                                HEARING

                               before the

 SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND REGULATORY OVERSIGHT

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 7, 2016

                               __________

  Printed for the use of the Committee on Environment and Public Works



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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             SECOND SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska

                 Ryan Jackson, Majority Staff Director
               Bettina Poirier, Democratic Staff Director
                              ----------                              

             Subcommittee on Superfund, Waste Management, 
                        and Regulatory Oversight

                  MIKE ROUNDS, South Dakota, Chairman
DAVID VITTER, Louisiana              EDWARD J. MARKEY, Massachusetts
MIKE CRAPO, Idaho                    THOMAS R. CARPER, Delaware
JOHN BOOZMAN, Arkansas               JEFF MERKLEY, Oregon
DAN SULLIVAN, Alaska                 CORY A. BOOKER, New Jersey
JAMES M. INHOFE, Oklahoma (ex        BARBARA BOXER, California (ex 
    officio)            





  
Hawkins, George, CEO and General Manager, District of Columbia 
  Water and Sewer Authority......................................     5
    Prepared statement...........................................     8
Glicksman, Robert, Professor of Environmental Law, The George 
  Washington University..........................................    12
    Prepared statement...........................................    15
    Response to an additional question from Senator Markey.......    34
Norris, Hon. Mark, Majority Leader, Tennessee Senate, on behalf 
  of the Council of State Governments............................    37
    Prepared statement...........................................    40
    Responses to additional questions from:
        Senator Inhofe...........................................    59
        Senator Rounds...........................................    63
Leinbach, Hon. Christian, Commission Chair, Berks County, 
  Pennsylvania, on behalf of the National Association of Counties    66
    Prepared statement...........................................    68
    Responses to additional questions from:
        Senator Inhofe...........................................   112
        Senator Rounds...........................................   116
Berrey, Hon. John, Chairman, Quapaw Tribe of Oklahoma............   118
    Prepared statement...........................................   121

 
    OVERSIGHT OF EPA UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL 
                              GOVERNMENTS

                              ----------                              


                         TUESDAY, JUNE 7, 2016

                               U.S. Senate,
         Committee on Environment and Public Works,
              Subcommittee on Superfund, Waste Management, 
                                  and Regulatory Oversight,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:36 p.m. in room 
406, Dirksen Senate Office Building, Hon. Mike Rounds (chairman 
of the subcommittee) presiding.
    Present: Senators Rounds, Markey, Boozman, and Inhofe.

            OPENING STATEMENT OF HON. MIKE ROUNDS, 
          U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

    Senator Rounds. Good afternoon, everyone. While we are 
waiting on Mr. Markey to arrive, I think we will begin with 
opening statements just to preserve your time as well.
    I would like to, first of all, let you know that the 
Environment and Public Works Subcommittee on Superfund, Waste 
Management, and Regulatory Oversight is meeting today to 
conduct a hearing on Oversight of EPA Unfunded Mandates on 
State, Local, and Tribal Governments. Today we will examine the 
EPA's compliance with the Unfunded Mandates Reform Act and the 
impact of unfunded mandates imposed by the EPA on State, local, 
and tribal governments.
    I am pleased our witnesses include State, local, and tribal 
representatives with extensive experience in balancing their 
demands required of States, localities, and tribes in complying 
with EPA regulations while managing limited resources and 
budgets.
    The Unfunded Mandates Reform Act, or UMRA, was enacted in 
1995 and sought to avoid imposing unfunded Federal mandates on 
State, local, and tribal governments and to make certain 
Federal agencies take costs into account when imposing new 
regulations.
    When a Federal agency seeks to impose regulations on a 
State, local, or tribal government that will result in $100 
million or more a year in expenditures, UMRA requires Federal 
agencies to evaluate a reasonable number of regulatory 
alternatives and choose the most cost effective alternative 
that will meet the regulatory goals of the agency without 
imposing unreasonable compliance costs on smaller governments. 
However, the EPA's overly burdensome and aggressive regulatory 
agenda has resulted in billions of dollars in regulatory costs 
on State, local, and tribal governments and often leads to 
citizens' footing the bill.
    Under the current Administration, the regulatory burden 
imposed by the EPA on the American people has steadily 
increased. According to the American Action Forum, from 2009 to 
2016, the EPA has finalized 163 overall regulations at a 
regulatory cost of $312.2 billion.
    The number of unfunded mandates being imposed by the EPA 
has also increased. From 2005 to 2008, EPA finalized seven 
regulations that triggered UMRA. However, from 2009 to 2014, 
the EPA issued 19 rules that contained unfunded mandates, a 
total of more than three annually. Further, in just the past 2 
years, the EPA has moved forward with finalizing multiple 
regulations that will impose unprecedented costs on State, 
local, and tribal governments.
    Despite the Administration's insistence that most of these 
rules are not unfunded mandates, in reality, rules such as 
Waters of the U.S., the ozone NAAQS rule, and the Clean Power 
Plan will undeniably result in hundreds of millions of dollars 
of compliance costs imposed on small governments faced with 
limited resources. For these rules, State, local, and tribal 
governments were not properly consulted throughout the 
rulemaking process as required by UMRA. The EPA finalized these 
regulations without considering the impact these regulations 
will have, and the EPA did not consider alternatives that would 
be more cost effective and easier to comply with before 
imposing these large, one-size-fits-all regulations that will 
have little environmental benefit.
    As a result, State, local, and tribal governments will be 
forced to use limited resources to comply with burdensome 
Federal regulations when they could put them to better use 
providing basic services and benefits to their citizens. 
Further, some small governments have no other choice but to 
raise taxes on American families in an attempt to manage the 
cost of complying with these Federal regulations.
    UMRA was created to make certain Federal agencies took the 
time to consider how Federal regulations would impact those 
required to comply with them. Unfortunately, the EPA has issued 
regulations in a way counter to the core intent of UMRA and 
continues to impose burdensome, costly regulations without 
undertaking proper consultation process or analyzing more cost 
effective alternatives.
    Federal agencies cannot continue to impose billions of 
dollars in regulatory costs on State, local, and tribal 
governments. We must recognize the unique characteristics of 
these governments that are tasked with managing multiple 
Federal, State, local and responsibilities with limited 
resources, while also trying to provide for American families. 
State, local, and tribal governments should be equal partners 
with the EPA in the regulatory process rather than victims of 
an adversarial regulatory process.
    I would like to thank our witnesses for being with us here 
today, and I look forward to hearing your testimony.
    Now I would like to recognize my friend, Senator Markey, 
for a 5-minute opening statement.

          OPENING STATEMENT OF HON. EDWARD J. MARKEY, 
          U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

    Senator Markey. Thank you, Mr. Chairman, very much, and I 
thank you very much for scheduling today's hearing.
    Imagine rivers catching fire, cities choking on smog, and 
toxic chemicals seeping into the classrooms of school children. 
Imagine an odorless, tasteless, and colorless toxic gas being 
sprayed across your entire community. These aren't the plots of 
a horror movie, but the stories of the Cuyahoga River, Los 
Angeles, Love Canal, and the former prolific use of the 
insecticide DDT, described by Rachel Carson in her book, Silent 
Spring.
    These catastrophes started an environmental revolution in 
our country. President Nixon created an Environmental 
Protection Agency in 1970, saying that we must preserve ``the 
earth as a place both habitable by and hospitable to man.'' And 
in an unbelievable decade of environmental activism between 
1970 and 1980, Congress passed the Clean Water Act, the Safe 
Drinking Water Act, the Toxic Substances Control Act, and the 
Resource Conservation and Recovery Act, and significantly 
strengthened the Clean Air Act and the Federal Insecticide, 
Fungicide, and Rodenticide Act.
    These laws have saved countless lives and billions of 
dollars in health costs and created an expectation that the air 
we breathe, the water we drink, and the land we use are safe.
    Much has changed since those bedrock environmental laws 
were first enacted. Eight-track tapes, the Ford Pinto, and pet 
rocks were, thankfully, left in the 1970s. But what has also 
changed is that EPA has been so effective that people now take 
clean air, clean water, and land that is also clean--they take 
those laws for granted.
    Contrary to the doom and the gloom prognostications of 
polluters, we have cleaned up the environment and grown the 
economy at the same time. Since the strengthening of the Clean 
Air Act in 1970, there has been a 70 percent reduction in smog, 
a 70 percent reduction in soot, and a 70 percent reduction in 
other pollutants. Meanwhile, American gross domestic product 
has grown by more than 200 percent.
    From Flint, Michigan, to the Tar Creek Superfund site on 
the lands of Chairman Berrey's Quapaw Tribe, we have a 
responsibility to ensure that all people have access to clean 
air and safe water and land. The Unfunded Mandates Reform Act 
was enacted in 1995 as a way to better understand the economic 
impact of Federal mandates on State, local, and tribal 
governments and ensures that they are consulted, establishes a 
procedural mechanism for Congress to block consideration of 
legislation containing unfunded mandates, and requires detailed 
cost-benefit analysis.
    Since 1995, Executive Orders 12866 and 13123 have also 
established cost-benefit analysis requirements for agency 
regulations. Similarly, the Administrative Procedures Act 
requires agencies to conduct cost-benefit analysis when issuing 
rules.
    The EPA is actually the most aggressive agency of the 
entire Federal Government in implementing Executive Order 
13123, having voluntarily applied its requirements to more of 
its rules than required, which has resulted in a 10-fold 
increase in EPA rules requiring consultation with State and 
local governments. Yet some in Congress want to add even more 
requirements, analysis, and roadblocks to the already lengthy 
and extensive regulatory process.
    Everyone on this committee agrees that the EPA should have 
to do cost-benefit analysis and consult with stakeholders. 
Everyone should also agree that adding so many layers to the 
rulemaking process that it becomes paralyzed will result in the 
erosion of the important public health protections Congress 
intended these laws to provide, because undermining our public 
health gains could truly be the beginning of a new horror 
story.
    Mr. Chairman, I thank you for having this hearing, and I 
yield back the balance of my time.
    Senator Rounds. Thank you, Senator Markey.
    Our witnesses joining us for today's hearing are Mr. George 
Hawkins, CEO and General Manager, District of Columbia Water 
and Sewer Authority; Mr. Robert Glicksman, Professor of 
Environmental Law, the George Washington University; Hon. 
Senator Mark Norris, who is the majority leader of the 
Tennessee General Assembly, on behalf of the Council of State 
Governments; Hon. Christian Leinbach, Commissioner Chair, Berks 
County, Pennsylvania, on behalf of the National Association of 
Counties.
    And I would like to call upon Chairman Inhofe, as the 
senior member from Oklahoma, to introduce our final guest 
today.
    Senator Inhofe. First of all, let me say that it is really 
nice to have John Berrey here. John Berrey is the Chairman of 
the Quapaw Tribe in my State of Oklahoma. We have been good 
friends for many years, as have Senator Boozman and John 
Berrey.
    But, you know, I suffered through being mayor of the city 
of Tulsa through over-regulations and unfunded mandates, and I 
remember, as you pointed out, Mr. Chairman, in your opening 
statement, that we had to start passing tax increases because 
these mandates were in fact mandates, and they were unfunded. 
And I remember the first act I had to do was to pass a 1 cent 
tax increase just to take care of unfunded mandates.
    So it is a problem that has been there for a long time. 
Yes, right now I have the Congressional Record in front of me 
from 1995, but our effort goes all the way back to 1979.
    But back to John Berrey, a great guy, a good friend, and 
who is going to give us a perspective that I don't believe we 
have had this before, as to the tribal effects that come from 
unfunded mandates.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Inhofe follows:]

                  Statement of Hon. James M. Inhofe, 
                U.S. Senator from the State of Oklahoma

    Thank you, Subcommittee Chairman Rounds, for convening 
today's oversight hearing, and thank you to our witnesses for 
being here to testify--in particular, our State, local, and 
tribal representatives.
    Today's topic is especially important for me because the 
time I spent as Mayor of Tulsa showed me how difficult it is 
for cities to balance compliance with unfunded Federal mandates 
while also responding to various local concerns and budget 
constraints. At that time, unfunded Federal mandates on Tulsa, 
primarily those from the U.S. Environmental Protection Agency 
(EPA), forced me to pursue a 1 cent sales tax for capital 
improvements. I was also on the Board of Directors for the 
Conference of Mayors, along with Senator Feinstein when she was 
a mayor, advocating unfunded Federal mandates reform, so this 
is a bipartisan concern that has been ongoing.
    Indeed, I was an original cosponsor of the Unfunded 
Mandates Reform Act (UMRA), enacted in 1995, because I thought 
it would serve as a useful tool to safeguard other levels of 
government from unjustified mandates by the Federal Government.
    Unfortunately, as this committee's oversight has exposed, 
EPA's regulatory process has a pattern where the Agency evades 
the requirements in laws that are meant to serve as a check on 
EPA's regulatory overreach.
    EPA has used UMRA's definitions and exemptions to their 
advantage to push the Administration's priorities through the 
rulemaking process while minimizing the far reaching effects of 
its rules. For instance, EPA claimed its Waters of the U.S. 
(WOTUS) rule and so-called Clean Power Plan do not trigger UMRA 
because the rules are not expensive enough. We will hear from 
our witnesses today about how these rules, and many more, will 
impose significant costs on State, local, and tribal 
governments, despite EPA's assessment. It is astounding that 
many of EPA's costliest and most controversial rules have 
escaped UMRA's coverage.
    While often avoiding UMRA's requirements on major rules, 
Obama's EPA has still been promulgating more rules that trigger 
UMRA than the previous Administration. Government-wide, the 
Office of Management and Budget has reported that rules on 
State, local, and tribal governments triggering UMRA have 
overwhelming been issued by the EPA.
    Even in instances where EPA has reviewed a rule triggering 
UMRA, the Agency falls far short of the law's consultation 
requirements. Consultation with State, local, and tribal 
representatives is a requirement set forth in UMRA as these 
governments all play a critical role in regulatory compliance. 
Yet witnesses today and those at many other hearings have 
explained EPA's approach to consultation is a mere check-the-
box exercise.
    Better consultation is needed to align EPA's rulemaking 
process with the processes of other governments. For instance, 
many EPA rules, such as the Clean Power Plan, require State 
legislatures to pass legislation to give their State agencies 
the authority and resources to implement the mandates. Further, 
State, local, and tribal governments must all be coordinated in 
planning the implementation of these rules and relay to EPA 
various technical challenges they will face in implementing the 
rule. This consultation should happen before rules are even 
proposed to allow for sufficient time to plan and for rules to 
be altered or scrapped based on co-regulators' feedback.
    This is why it is critical we hear from our State and local 
partners and conduct oversight over EPA's implementation of 
UMRA. Above all, we need to ensure that EPA action upholds the 
cooperative federalism framework where various levels of 
government work together to craft fair and efficient rules in a 
cost effective manner. I look forward to hearing from our 
witnesses today who will share their on-the-ground perspective 
of EPA's compliance with UMRA and implementation of EPA 
unfunded mandates.
    I ask that my full statement be entered into the record. 
Thank you.

    Senator Rounds. Thank you.
    Chairman Berrey, welcome.
    Now we will turn to our first witness, Mr. George Hawkins, 
for 5 minutes.
    Mr. Hawkins, you may begin.

STATEMENT OF GEORGE HAWKINS, CEO AND GENERAL MANAGER, DISTRICT 
             OF COLUMBIA WATER AND SEWER AUTHORITY

    Mr. Hawkins. Good afternoon, Chairman Rounds, Ranking 
Member Markey, distinguished members of the Subcommittee on 
Superfund, Waste Management, and Regulatory Oversight. My name 
is George Hawkins. I am the Chief Executive and General Manager 
of the District of Columbia Water and Sewer Authority, more 
commonly known as DC Water.
    DC Water is one of the few ``one water'' utilities in the 
country, providing drinking water, waste water, and storm water 
services from one enterprise to millions of retail and 
wholesale customers in the Washington, DC, region. DC Water is 
regulated by EPA Region 3 for Safe Drinking Water Act and Clean 
Water Act compliance. From an environmental health and public 
health perspective, these seminal pieces of legislation have 
brought forth tremendous benefits.
    Growing up in the suburbs of Cleveland, Ohio, I recall 
visiting the Cuyahoga River on a class field trip in 1969 and 
will never forget seeing the surface of the river, which looked 
like a finger painting, water swirling with colors and powerful 
aromas. The same year of my visit, the Cuyahoga caught on fire 
from sparks of a passing railcar and burned for a week.
    Today, thanks to the Clean Water Act, many of our rivers 
are healthy and thriving. Today, thanks to the Safe Drinking 
Water Act, the overwhelming majority of people in this country 
have safe, reliable drinking water at the tap 24 hours a day, 7 
days a week, and 365 days a year.
    In my view, this outcome is one of the great public policy 
accomplishments of the last century and one of the often 
overlooked miracles of modern society. However, it is the 
success of these statutes that highlights the need to be 
flexible and thoughtful to ensure that we continue to derive 
success in the future. We still have water quality challenges 
to overcome and new threats on the horizon.
    Currently, DC Water is in the process of implementing two 
massive projects with a total cost approximating $4 billion. 
Under the terms of a 2005 consent decree, DC Water is 
implementing the $2.6 billion Clean Rivers Project. The first 
phase is underway to construct a massive underground tunnel 
system to control combined sewer overflows to the Anacostia 
River.
    Our second massive undertaking involves removing nutrients 
from our treated water at our Blue Plains facility. EPA's 
discharge permit requires us to reduce dramatically the level 
of nitrogen in treated water we discharge into the Potomac 
River, which leads to the Chesapeake Bay. The recently 
completed enhanced nitrogen removal project cost approximately 
$1 billion.
    DC Water has received some Federal funding for these 
initiatives, but the overwhelming portion of these projects is 
funded by our ratepayers and wholesale customers. Beginning in 
October of next year, the average monthly bill for a 
residential customer will for the first time be over $100, more 
than double the average bill when I arrived in 2009.
    Given the declining role of the Federal Government in 
funding water infrastructure, utilities like DC Water must 
account for all of our costs in the rates that we charge our 
customers. The price of clean and reliable water is increasing, 
and so is the need to replace aging infrastructure.
    I support full-cost accounting for water services that 
enables DC Water to fund our needs and enables our customers to 
make appropriate market choices on water use and conservation. 
I state this view with two reservations. First, as you well 
know, the District of Columbia is an urban area with a very 
high cost of living and a sizable low income population. 
Unfortunately, our affordability analysis demonstrates that 
many of our customers struggle to pay their water and sewer 
bills and will have even more challenges in the future. This 
scenario is all too familiar to most jurisdictions across the 
country.
    The practical consequences that many jurisdictions are not 
able to raise rates to cover their needs because of the 
limitations of their lowest income customers. With constrained 
income, utilities will nonetheless undertake mandated work, 
reducing focus on basic infrastructure investments. The 
condition of these assets then continues to deteriorate, and 
utilities risk falling into a downward spiral of poorer service 
and reduced support.
    Second, I am also concerned that the success of our 
Nation's water statutes pushes us to continue doing what we 
have always done, just more so, to a point of drastically 
declining benefits at the margin. DC Water faces enormous 
escalation of costs in reducing nutrient discharges. For the 
years 2000 to 2015, the capital cost to remove 1 pound of 
nitrogen has increased about 380 times. I believe there is 
agreement that Chesapeake Bay goals are well intentioned and 
deserving, but I also believe they could be met with a more 
flexible and holistic watershed approach that would include 
regulating non-point sources like runoff from suburban 
development and agriculture.
    I want to note that EPA has made progress in considering 
the fiscal impact of their regulations. Specifically, EPA's 
Integrated Planning Framework provides the flexibility to 
consider community affordability and financial capability when 
making Clean Water Act determinations.
    Additionally, EPA Region 3 recently negotiated DC Water to 
modify our $2.6 billion consent decree for combined sewer 
overflows. As part of these negotiations, EPA thoughtfully 
considered the economic burden of the previous 20-year 
construction timeline placed on our low income customers. The 
modified agreement extends the latter stages of the project, 
which allows us to spread out rate increases.
    I am confident that no one intends for regulatory 
requirements to feed into a cycle that generates poorer service 
and diminished support. I am also confident that a clear 
solution exists: a Federal assistance program for low income 
customers. An example of a similar assistance program exists in 
the long standing and long successful Federal program to 
subsidize heating assistance, the Low Income Heating and Energy 
Assistance Program. Providing an income based assistance 
program for water utility bills would help our poorest 
customers with this essential service, enabling water utilities 
to increase rates for other ratepayers who can afford to help 
invest in water services and infrastructure improvements.
    I commend the subcommittee for holding this hearing and 
bringing attention to the impact Federal regulations have on 
State, local, and tribal governments and ultimately to all 
residents of the great Nation we live in. A balance must be 
achieved between protecting the environment and protecting our 
most vulnerable from rising costs. These endeavors are not 
mutually exclusive, and we look forward to working with the 
subcommittee on these matters.
    I will welcome your questions. Thank you.
    [The prepared statement of Mr. Hawkins follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    Senator Rounds. Thank you, Mr. Hawkins.
    We will now hear from Professor Robert Glicksman.
    Professor Glicksman, you may begin.

STATEMENT OF ROBERT GLICKSMAN, PROFESSOR OF ENVIRONMENTAL LAW, 
                THE GEORGE WASHINGTON UNIVERSITY

    Mr. Glicksman. Chairman Rounds, Ranking Member Markey, and 
members of the subcommittee, I appreciate the opportunity to 
testify on the importance of the Environmental Protection 
Agency's actions to protect health and the environment and on 
how regulatory procedures can impair the Agency's ability to 
perform that function.
    My written statement makes four points which I will 
summarize today.
    First, the environmental safeguards EPA has put in place 
have delivered enormous benefits to the American people. 
Second, these safeguards should be available to all Americans, 
regardless of location or income level. Third, a hobbled 
regulatory system undermines EPA's ability to carry out its 
statutory missions of protecting public health and 
environmental quality. And fourth, pending proposals to amend 
the Unfunded Mandates Reform Act would create duplicative 
requirements that would hinder EPA's ability to provide 
adequate health and environmental protection.
    Congress passed the Nation's key environmental laws during 
the 1970s by overwhelming bipartisan majorities. It formulated 
goals while delegating to EPA standard setting authority to 
achieve them. This approach has allowed EPA's technical and 
policy experts to determine how best to achieve desired health 
and environmental protection goals in a manner consistent with 
legislative direction.
    Congress also built these laws on a cooperative federalism 
framework, which allows the States to implement EPA's 
regulatory standards in ways that reflect State policy choices 
and accommodate local needs.
    Opinion polls consistently reflect the public's strong 
support for these laws, and for good reason: their successes 
are impressive. For example, by preventing exposure to 
dangerous air pollutants, the Clean Air Act saves thousands of 
lives and avoids hundreds of millions of lost work and school 
days each year. EPA regulations have reduced the incident of 
dangerous blood lead levels which can create cognitive 
impairment in children from 88 percent in 1976 to 0.8 percent 
in 2010.
    Because of the Clean Water Act, the percentage of surface 
waters meeting the Act's fishable, swimmable waters goal 
increased from between 30 to 40 percent in 1972 to as much as 
70 percent in 2007.
    These laws and regulations are not cost-free; they require 
those polluting the Nation's air and water to upgrade the 
technologies used to reduce pollution. But a 2015 report by the 
Office of Management and Budget, which performs a watchdog role 
over regulatory agencies, concluded that the benefits of the 
major EPA rules issued between 2004 and 2014 outweighed costs 
by a ratio of up to 20 to 1. It also found that the monetized 
benefits of EPA's Clean Air Act regulations alone accounted for 
up to 80 percent of all Federal regulatory benefits across all 
of the agencies examined in the report.
    As new threats to public health emerge due to technological 
and other changes, it is critical that EPA retain its authority 
to continue to provide these important protections.
    EPA is obliged by statute to provide the same minimum level 
of protection for everyone, regardless of their geographic 
circumstance or economic situation. Generally, subnational 
governments over the years have supported EPA's regulations. 
Some have even exercised the authority preserved to them under 
Federal law to adopt standards that are more protective than 
EPA's.
    On occasion, State and local policymakers failed to take 
adequate steps to protect their citizens. Consequences can be 
dramatic, as the recent drinking water crisis in Flint, 
Michigan, illustrates. One reason Congress chose to require EPA 
to deliver universally applicable minimum safeguards was to 
ensure that everyone, including the Nation's most vulnerable 
populations, enjoy basic public health protections.
    Some pending legislation, including bills that would amend 
the Unfunded Mandates Reform Act, would hamper EPA's ability to 
deliver that level of protection. EPA and other Federal 
agencies already must comply with procedural and analytical 
requirements, many of which duplicate each other, that make the 
process of adopting rules much lengthier than it has ever been. 
It can take years for EPA to adopt a single major rule. In the 
interim, the problems targeted by the rule continue to threaten 
public health and environmental quality.
    The proposed unfunded mandates amendments would aggravate 
the situation by imposing on agencies requirements that for the 
most part duplicate those that already exist under the 
Administrative Procedure Act, the Regulatory Flexibility Act, 
and Presidential executive orders. The bills express concern 
about duplicative regulations as a source of waste for 
businesses, but duplicative regulatory procedures have the same 
effect for governing.
    Delays resulting from an ossified regulatory process can 
harm interests across the board, including small businesses, 
States, localities, and tribes. The requirements that bills 
like H.R. 50 would impose on agencies would apply to repeal or 
modify rules that have become obsolete or that produce 
unjustified regulatory burdens as well to initial rule 
adoption. The Supreme Court has indicated the courts must 
review regulatory repeals with the same scrutiny as they do 
rule adoptions.
    While some provisions would not duplicate existing law, 
they would add little value to the regulatory process. H.R. 50, 
for example, would require agencies to assess the costs and 
benefits of regulatory action before issuing even a notice of 
proposed rulemaking. The point of the notice and comment 
rulemaking process is to solicit input from affected interests, 
including subnational governments, on whether the agency's 
initial take is adequately informed and reflects sound policy.
    It is hard to see how an agency can perform a meaningful 
cost-benefit analysis of a rule it has not even formulated in 
sufficient detail to be suitable for public comment. Costs of 
delayed protection resulting from this requirement, therefore, 
are unlikely to be offset by the benefits of an improved 
regulatory process.
    For 70 years, the Administrative Procedure Act has provided 
a process for adopting rules. That process balances the need 
for timely and responsive action by agencies whose duties are 
to protect the public interest with the benefits to inform 
regulation that result from public participation. The law is 
not perfect, but the reforms being considered would exacerbate 
its weaknesses, not cure them.
    I am happy to answer any questions you may have.
    [The prepared statement of Mr. Glicksman follows:]
    
    
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]   
    
   
    Senator Rounds. Professor Glicksman, thank you very much 
for your testimony.
    Our next witness is Senator Mark Norris.
    Senator Norris, you may begin.

   STATEMENT OF HON. MARK NORRIS, MAJORITY LEADER, TENNESSEE 
     SENATE, ON BEHALF OF THE COUNCIL OF STATE GOVERNMENTS

    Mr. Norris. Thank you, Chairman Rounds and Ranking Member 
Markey, and members of the committee. Thank you for the 
opportunity to testify today. I think it is very important that 
you are giving us this opportunity because one of the things 
that we are frustrated about at the State level these days is 
the lack of the opportunity to communicate in this way with our 
friends in the Federal Government.
    I am Mark Norris. I am the Senate Majority Leader from the 
State of Tennessee. I have the honor of serving the citizens of 
the 32rd district, which I mention because it is part of the 
west coast of Tennessee. We are along the Mississippi River, 
which means we deal with things like basin authorities and the 
Corps of Engineers, which brings relevance to me today for why 
I am here.
    In the interest of full disclosure, I should also mention 
that I am the Senate representative from Tennessee on the 
Southern States Energy Board, and I had the privilege of 
serving as the chairman of the Council of State Governments in 
2014, also known as CSG, and Chairman Rounds served as our 
president in 2010.
    So on behalf of CSG and State leaders throughout the 
country, we appreciate the opportunity to be heard. And I 
should also mention that CSG is the only organization of its 
kind that serves all three branches of government in all 50 
States, so we understand bipartisanship, and we understand the 
separation of powers.
    Last week in Tennessee we celebrated the 220th anniversary 
of our statehood. This is statehood week whereby Tennessee 
became the 16th State in the Nation. The act was signed by none 
other than President George Washington himself, and Thomas 
Jefferson commented on our constitution in Tennessee as the 
least imperfect and most republican of State constitutions. It 
provides that the citizens have the power and the right of 
exercising sovereignty so far as is consistent with the 
Constitution of the United States, recognizing the Articles of 
Confederation and the Bill of Rights.
    And I mention this at the outset because really what we are 
talking about here today is sort of the two Cs, as I hear them, 
not only the Constitution, but more effective communication 
under the Constitution.
    As Chairman Rounds would particularly understand, the 
States are the foundation of our Federal system as enshrined in 
the Tenth Amendment. This is the foundation upon which States 
develop innovative ideas and policies and often fulfill their 
roles as the laboratories of democracy. But all too often today 
we find that those laboratories are being interfered with. 
State-based innovation is increasingly adversely impacted by 
the growth of some of these Federal policies and regulations 
and rules that we have been talking about which often manifest 
in the form of unfunded mandates.
    We can talk perhaps in the Q&A portion of this, but 
Chairman Rounds mentioned the Clean Power Plan and the Clean 
Water Rule, both of which are being challenged by a number of 
States in Federal court. Interestingly, perhaps, Tennessee is 
not a party to the 111(d) legislation; it is a party to the 
waters of the State, the Clean Water rule litigation. And the 
difference is that the Federal Government, the EPA, and the 
particular departments and agencies involved in the 111(d) case 
gave us much more advanced notice, gave us much more 
opportunity to participate and be heard than was the case with 
the Clean Water Rule.
    Notwithstanding that, studies do show that Tennessee could 
experience electricity price increases of as much as 15 percent 
under the Clean Power Plan, and Tennesseans already spend an 
estimate average of 12 percent of their after tax income on 
energy, so the impact is disproportionately high.
    Along with the cost of financing these new unfunded 
mandates, the majority of Federal regulations have too often 
been enacted with insufficient input, if any, nor adequate 
consultation from State and local governments; and more often 
Federal agencies regularly process rules without even 
conducting an appropriate analysis of the potential economic 
costs as required by UMRA. This is what led, in part, to the 
formation of our federalism task force at CSG. My colleague, 
Alaska State Senator Gary Stevens, and I put forth a study over 
a period of 2 years to examine what we could do better to not 
only adopt a seat of principals that articulate a helpful 
vision, but how we would implement those.
    I have included in my submission a full list of the 
principals that we adopted, and they focus, generally speaking, 
on avoiding preemption, avoiding unfunded mandates, promoting 
State flexibility, promoting State input on international trade 
policy, and also focusing on civics; not only making sure that 
civics are being taught so that our next generation understands 
the nature of our government, federalism, how things work in 
our Republic, or should, but also make sure that we are 
teaching each other, as State legislators with 
responsibilities, about the rule of law and constitutionalism 
as it affects our daily responsibilities.
    It is this type of tension and the lack of constructive 
communication that has led to a number of initiatives, one of 
which is the adoption by eight States, including Tennessee, of 
the resolution calling for Congress to adopt the Regulation 
Freedom Amendment to the United States Constitution.
    In the past years, we have held a variety of meetings with 
the White House, Federal agencies, and Members of Congress on 
all of these issues, but all too often we feel as though we are 
incidental, rather than integral, to the process. In a word, 
folks feel the Federal Government simply doesn't care, and that 
is not constructive for anyone.
    So this brings me to an important point, which is that we 
need to take a closer look at what we call consultation with 
the States. Many of our State legislators, like me, are truly 
citizen legislators. It is sort of a full-time part-time job. 
But it is very difficult for us to keep up with the 
proliferation of rules and regulations, even for our 
departments to do so and communicate with us in a meaningful 
way.
    We are thankful for organizations like the Council of State 
Governments, which is our eyes and ears in Washington, but we 
also need to identify other real and concrete ways to improve 
the consultation process.
    In the past year, CSG has had the opportunity to chair the 
organization known as the Big 7, and under the leadership of 
CSG's Executive Director, David Adkins, the coalition also 
worked to identify recommendations on how to improve the State-
Federal regulatory process. Those recommendations are also 
included in my materials.
    As you will see, they include updating UMRA, establishing 
consistent State-Federal advisory committees within Federal 
agencies, and simply ensuring State legislators know how to 
contact each Federal agency, who to contact it, and how to do 
it in a meaningful way. Navigating the relationship between 
State and Federal Governments is no easy task, but we are 
hopeful that we can take practical steps to improve our 
cooperation.
    In conclusion, Members, I want to stress the importance of 
establishing a process that ensures States are true partners in 
our Federal system and not just another stakeholder. I believe, 
with your leadership, we can take steps to improve the outreach 
and consultation between our States and the Federal Government.
    Thank you very much for the opportunity to appear before 
you today, and I look forward to your questions.
    [The prepared statement of Mr. Norris follows:]
   
   
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    Senator Rounds. Senator Norris, thank you very much for 
your testimony.
    We will now hear from our next witness, Commissioner 
Christian Leinbach.
    Commissioner Leinbach, you may begin.

 STATEMENT OF HON. CHRISTIAN LEINBACH, COMMISSION CHAIR, BERKS 
COUNTY, PENNSYLVANIA, ON BEHALF OF THE NATIONAL ASSOCIATION OF 
                            COUNTIES

    Mr. Leinbach. Chairman Rounds, Ranking Member Markey, EPW 
Chair Inhofe, and distinguished members of the subcommittee, I 
am honored to testify today on the impacts of EPA regulations 
on State, local, and tribal governments. My name is Christian 
Leinbach, and I serve as Chairman of the Berks County Board of 
Commissioners in Pennsylvania, and today I am representing the 
National Association of Counties.
    While Berks County is considered urban, with a population 
close to 415,000, we have a diverse mix of urban, suburban, and 
rural communities. Manufacturing accounts for more than 30,000 
jobs in our county, and agriculture is our No. 1 industry.
    As a county commissioner, I have seen firsthand how our 
local communities, major employers, and important 
infrastructure projects have been directly and indirectly 
impacted by Federal environmental regulations, and today, as 
you continue to assess Federal regulations and their impact on 
State and local governments, I would like to share with you 
three key points for your consideration.
    First, this is important because counties and other local 
governments play a key role in the Federal regulatory process. 
Counties build, own, and maintain a significant portion of 
public safety infrastructure that may be regulated under 
Federal and State laws. This includes over 45 percent of 
America's roads and nearly 40 percent of all public bridges. We 
also own and maintain roadside ditches, flood control channels, 
storm water culverts and pipes, and MS4, just to name a few.
    But just as important as our infrastructure ownership, we 
share co-regulator responsibilities with Federal and State 
governments for a number of environmental programs, including 
the Clean Air Act and the Clean Water Act. So when EPA crafts 
new rules, their decisions have a direct impact on how we serve 
our residents at the local level.
    Second, the growing number of Federal regulations and 
mandates is significantly impacting counties and our residents. 
In recent years, the Federal Government has increasingly relied 
on State and local governments to shoulder implementation costs 
for more than just environmental programs. This has caused an 
imbalance at the local level since counties are limited in our 
ability to generate local revenue. In fact, more than 40 States 
limit our ability to collect sales, property tax, and/or other 
fees. These leave counties with a difficult choice: do we cut 
critical local services like law enforcement, fire protection, 
and emergency services or delay needed infrastructure projects? 
These choices have significant repercussions for our residents 
and businesses and affect the quality of life within our 
communities.
    Counties nationwide continue to be very concerned about 
EPA's water of the U.S. rule, the ozone rule, and risk 
management rule, which are quite complex and costly regulatory 
mandates that involve environmental compliance. These rules 
will extend Federal jurisdiction over a greater number of 
county projects and could compromise our ability to fulfill 
significant infrastructure construction, maintenance 
activities, and public safety responsibilities.
    Berks County has felt the effects of the growing number of 
EPA regulations over the past years. In fact, one of our 
largest coal-fired power plants shut down due to the NAAQS 
rules. Seventy-five employees lost their jobs, and these were 
quality jobs paying around $70,000 a year.
    Ultimately, counties support environmental protections and 
share many of the same goals as the Federal agencies. But we 
are concerned that the current rulemaking process does not take 
into account the true implications of these regulations.
    Finally, and most importantly, meaningful intergovernmental 
consultation will create greater clarity and increase the 
effectiveness of Federal regulations. Even though EPA has one 
of the strongest internal consultation requirements, it is 
inconsistently applied. Although waters of the U.S., ozone and 
risk management rule will have a major impact on county 
governments, we were not meaningfully consulted with, despite 
repeated requests.
    In conclusion, while we share many of the same goals as our 
Federal partners, the current consultation process must be 
strengthened. Counties, with our experience and expertise, 
stand ready to work with Congress to improve the Federal 
regulatory and consultation process.
    Thank you for the opportunity to testify today. I look 
forward to your questions.
    [The prepared statement of Mr. Leinbach follows:]
    
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    Senator Rounds. Commissioner Leinbach, thank you for your 
testimony.
    Our next witness is Chairman John Berrey.
    Chairman Berrey, you may begin.

           STATEMENT OF HON. JOHN BERREY, CHAIRMAN, 
                    QUAPAW TRIBE OF OKLAHOMA

    Mr. Berrey. Thank you, and good afternoon, Chairman Rounds, 
Ranking Member Markey, and also Senator Inhofe and Senator 
Boozman. I appreciate the opportunity to speak to you today, 
and I am going to echo a lot of the same concerns these 
gentlemen have.
    I am the Chairman of the Quapaw Tribe of Oklahoma. We live 
in northeastern Oklahoma. We were the indigenous people of the 
State of Arkansas until the mid-1800s, when we were removed to 
Oklahoma, so we were across the river from our friend here from 
Tennessee.
    I have a prepared statement I have delivered to you, but I 
am just going to make a few points that I would like to point 
out, and hopefully you can understand better from the tribal 
perspective how a lot of these rules and regulatory mandates 
negatively impact the tribal governments and the Quapaw Tribe 
in particular.
    The Quapaw Tribe is a very progressive tribe. We are a 
self-governance tribe, which means that we do not rely as much 
as some tribes on the Bureau of Indian Affairs and the 
Department of the Interior. We take the funding, and we manage 
it ourselves, and we provide those programs that the Federal 
Government has for years provided us that we manage ourselves.
    But we are more than that. We provide emergency medical 
service, fire protection, and law enforcement not just for our 
Indian community, but for the local non-Indian community in our 
area. Ottawa County, Oklahoma, we provide the greatest fire 
protection of all of the local governments. In 2011, the Joplin 
tornado, the Quapaw Tribe provided the 911 emergency services 
for the city of Joplin for 5 weeks post-tornado. So we are very 
involved in the community, and our resources are spent in the 
community, but they are not just targeted strictly to Native 
Americans.
    So I would like to talk to you that my tribe doesn't have a 
tax base. That is part of being a tribe. We live on lands that 
aren't taxed because it is under Federal jurisdiction, and it 
makes it so our lands are not taxable. In some ways that is a 
benefit to the tribes, but in other ways it makes it very 
difficult for the tribe to develop an infrastructure to help 
develop our communities.
    This means, like all Indian tribes, we must create 
opportunities. We must create economic development to ensure 
that we can provide the needs for our local community. We have 
a casino thanks to the Indian Gaming Regulatory Act. But we are 
more than that. We are building a USDA-inspected meat and beef, 
bison, pork processing plant now that, if I was building it 
across the street on fee land, it would take me probably half 
the money and half the time. But because I am on Federal land, 
and I have to follow the Federal rules and the mandates by the 
EPA, it is taking me twice as long and is costing me twice as 
much. And we are going to provide jobs not only for Native 
Americans but for the local community. And we are going to 
provide a new source of meat cutters for the local grocery 
chains that are desperately looking for people to fill that 
trade.
    We have a heavy legal burden that is put on us because we 
are Native Americans, and we don't get the opportunity to 
consult with the EPA and other agencies, so it makes it very 
difficult for us to keep up with the rules and regulations that 
come down the pike. Every time that the Quapaw Tribe tries to 
incorporate our resources to develop economic opportunity for 
not only our people, but for the people of the local community.
    Earlier, Senator Markey spoke of the Tar Creek Superfund 
Site. That is 40 square miles within our tribal jurisdiction. 
It is a scar you can see from the moon. It is the result of 
heavy zinc and nickel mining that left a lot of contamination 
on the land. I believe if it wasn't for a lot of the 
regulations and the mandates by the EPA, we would probably be 
further along in the clean up than we are to date. Currently, 
the Quapaw Tribe is the contractor of choice for the State and 
for the EPA to do the removal of the contamination on the 
surface, but we are constantly facing new rules, new mandates 
that make it difficult for us to stay focused on doing what it 
is that we do to save the taxpayer money and get the work done.
    So we are constantly dealing with this Federal system of 
rules and regulations that impede us in our ability to work 
fast, gain financing, get projects going and get them completed 
to actually get something that creates more jobs, more economic 
development, and more opportunity.
    You can go across the country today, and you can fly at 
night, and you can see the reservations in the West purely 
because of regulatory mandates that tribes have difficulty 
meeting. The reservations are dark. You can go to North Dakota 
and you can spot the three affiliated reservations because it 
is dark, but everywhere around it is lit up as they are 
fracking and they are creating economic development using those 
resources that are there underground. But because it is so 
difficult for tribes under these rules, it is very visible at 
night because there is little activity.
    It is happening in Navajo, it is happening at Crow because 
of the coal rules. It has killed jobs, it has killed hope, and 
it has killed opportunity for so many Native Americans in those 
regions. These are places where people freeze to death in the 
winter. These people are hungry. They are rural, they are 
isolated, and they have very little opportunity. And when we 
create rules and regulations without consulting with the local 
community, we never really understand the impacts it has on 
those people until they are already on the books and the saw 
mills close, the coal fields shut down, and then the people 
begin to starve.
    So what we want, we are hoping for, and why we are very 
grateful for this opportunity is we want true consultation, we 
want true communication, and we want collaboration. We believe 
that we know what is best for our people. Native Americans 
don't want to trash the rivers. We don't want to trash the air. 
We don't want to make the world a worse place for our 
grandchildren. But we believe that we have the insight and the 
respect for Mother Nature that is necessary to come up with 
rules and regulations that we can fund and that will make the 
world a safer and better place instead of creating confusion 
and stagnation based on new rules that come out without any 
thought put into it with the local community.
    So on behalf of the Quapaw Tribe and all Native America, I 
want to thank you, Senator Rounds, Senator Inhofe, and you too, 
Senators Boozman and Markey for the work you do for Native 
Americans. I know you are trying to work in other venues to 
help the Indian people across this country, and we are very 
grateful for that. I am grateful for this opportunity today, 
and I look forward to any questions.
    If you want to come out and really see where these mandates 
that are unfunded has created havoc, come to the Quapaw 
Reservation and come see the Tar Creek Superfund site, which, 
for 30 years, we have been battling this. They have spent 
millions and millions of dollars, but you can't really see what 
has changed except what we have worked with with Senator 
Inhofe, who we have been able to get through by beating up the 
EPA and making the things work.
    [The prepared statement of Mr. Berrey follows:]
   
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    Senator Rounds. Chairman Berrey, thank you for your 
testimony.
    I would note at this time that, without objection, the 
written testimony of all of the witnesses will be included for 
the record.
    Senators will now each have 5 minutes for questions, and I 
will begin.
    Let me start with Senator Norris. Senator Norris, you were 
involved in an effort by the Council of State Governments to 
improve the role of States in the Federal process. Can you 
share with us some suggestions you have that could improve the 
Federal regulatory process through increased State 
participation?
    Mr. Norris. Thank you, Chairman Rounds. A couple of those 
that are enumerated in the materials we have submitted include 
these that come first to mind.
    First, establishing State and local government advisory 
committees within Federal agencies. Not to add to 
bureaucracies, but absent what we used to have, the Advisory 
Commission on Intergovernmental Relations, ACIR, there really 
isn't anything equivalent to that today that is consistent 
through the Federal agencies, and we think that perhaps 
establishing a State and local advisory committee, something 
like that but perhaps a new generation, something different, 
within each Federal agency could help to ensure that there is 
consistent input and consultation and analysis of these 
proposed rules.
    In Tennessee we have the Tennessee Advisory Commission on 
Intergovernmental Relations, which I chair, and have for a 
number of years, and it becomes a pretty effective think tank 
as well as a roundhouse, if you will, for communicating with 
our stakeholders, the county governments, local governments, 
and other State agencies.
    Another idea is to develop an annual or perhaps a biannual 
session between agency staff and association staff. This would 
allow all groups to make introductions and facilitate dialogue, 
including with both political and career Federal agency staffs. 
Also, to exchange rosters of key contacts between senior agency 
officials, including career and political employees responsible 
for writing regulations. Again, this isn't rocket science, it 
is not earth shattering, but it is sort of common sense changes 
that can be made at the administrative level to really 
effectuate more effective communication across all these 
levels.
    Those would be just two ideas, Chairman Rounds.
    Senator Rounds. Thank you.
    Commissioner Leinbach, States and counties are not only 
responsible for administering State and Federal regulations, 
but they also must provide other critical services to citizens, 
such as waste management, law enforcement, emergency services, 
and education. How has the recent barrage of EPA regulations 
impacted counties' ability to provide these vital services to 
American families?
    Mr. Leinbach. Looking at Berks County as an example, we 
have had to deal with the issue of waters of the U.S. and the 
potential impact on costs for counties, the implementation of 
roads. If you look across the country, 45 percent of roads in 
America are owned and maintained by counties. We believe it is 
imperative that counties be brought into the process in the 
very beginning.
    In Berks County we noted, and I have more details in my 
formal testimony, that we lost 70 jobs with our largest power 
supplier, and that was the Titus Station Generating Plant. 
Through the lead attainment standards several years ago, our 
largest employer, East Penn Manufacturing, over 7,000 
employees, they were already meeting the new lead attainment 
standard for a year and a half. They had a year and a half of 
data.
    They came to the county and asked for help because they 
were notified that EPA was requiring 3 years of data. And in 
spite of our pleas to the EPA not to put that part of our 
county in non-attainment, they were placed in non-attainment. 
That meant that our largest employer during that period of time 
was not able to expand, and we were not able to attract 
manufacturing businesses to that region of the county. That has 
a direct impact economically.
    If you look at county government, we are concerned about 
the same issues that the Federal Government is concerned about. 
No. 1, we believe in clean water, we believe in clean air, and 
public safety, No. 2, is our No. 1 job. The 911 services, 
police, fire, rescue, and those are costs we have to absorb. 
When we are challenged with the cost of regulations, those 
other areas often suffer.
    Senator Rounds. Thank you, sir.
    My time has expired.
    Senator Markey.
    Senator Markey. Thank you, Mr. Chairman, very much.
    Mr. Norris's testimony, Mr. Glicksman, cites a report that 
lists the costs of Federal mandates as being between $57 
billion and $85 billion every single year. But that very same 
report estimates the benefits of regulations to be between $68 
billion and $103 billion per year.
    Professor Glicksman, do you agree that environmental 
regulation often produces more net benefits than the costs?
    Mr. Glicksman. I do. And the OMB report from 2015 that I 
cited provides ranges of estimates of environmental benefits, 
environmental costs for various EPA regulations. The report in 
all cases provides estimates in which the upper estimate of 
regulatory cost is lower than the lowest estimate of regulatory 
benefit. So even in a worst case scenario EPA regulations are 
providing significantly greater benefits than the costs they 
impose.
    Senator Markey. Let me just stop there for 1 second. Let me 
just ask the next question, which is that EPA regulations have 
helped to protect wetlands and reduce lead in gasoline, making 
sure our drinking water is safe to drink and saves thousands of 
lives by reducing air pollution.
    Do any of you disagree that EPA regulations have made 
people healthier and improved our environment?
    Mr. Leinbach. Senator Markey, I do not disagree. In fact, 
we believe, as counties, that our objective of clean air and 
clean water is consistent. And our issue is not with the desire 
for clean water.
    Senator Markey. OK, I understand. That is the question.
    Well, the situation in Flint, Michigan, has been a recent 
reminder that Americans look to the government to ensure that 
the water they drink is safe. Does anyone disagree that 
providing safe drinking water to everyone is an essential 
service that we must provide to every American?
    [Affirmative nods.]
    Senator Markey. Well, let me then move on. Experts say $1 
trillion is needed to upgrade drinking and clean water 
infrastructure and prevent future Flints. Congress provided not 
$1 trillion, but a mere $1 billion each in fiscal year 2016 for 
drinking water and clean water State revolving funds.
    Would you all support increased funding for communities to 
meet the public health standards established under the Safe 
Drinking Water Act and the Clean Water Act?
    Mr. Berrey. Well, I believe I would as long as they reduce 
some of the regulatory burdens that they have added to it that 
add the costs at the end of the day don't complete the project.
    Senator Markey. But would you support Congress 
appropriating $1 trillion to help the tribes and help the 
cities and towns and counties to deal with the issues?
    Mr. Berrey. As long as it came along with a reduction with 
unnecessary regulatory involvement that doesn't come with 
consultation with the tribes.
    Senator Markey. So you wouldn't want the money if the 
regulations didn't go away.
    Mr. Berrey. I would want the money, but I would want to be 
able to get a dollar for dollar for all the work that I put 
into it.
    Senator Markey. I appreciate that.
    From the District of Columbia, would you want that extra 
money?
    Mr. Hawkins. Just to give a sense of perspective, of the $1 
billion appropriated for the revolving funds, DC Water's 
capital budget alone is $600 million.
    Senator Markey. That is what I am saying. Thank you. So $1 
trillion is what experts say is needed to help DC and to help 
all the other counties.
    Mr. Hawkins. It would be the single best investment in our 
economy.
    Senator Markey. I agree with you. We should not have kids 
not having safe drinking water.
    The Clean Water Act ensures pollution is kept at a safe 
level in our water system. Does anyone disagree that 
tributaries that provide drinking water should be protected 
from the dumping of dangerous substances that harm public 
health and environment?
    Mr. Norris. Senator Markey, how would you define 
tributaries? Because that is a case in point. That is one of 
the things we are struggling with at State and local levels 
now. Your definition of tributary may differ from ours. You 
know, a cow path from my barnyard out to the pasture does not a 
tributary make. However, some regulators would disagree. And 
that is how we are at loggerheads with one another.
    Senator Markey. Well, again, we have an issue that if in 
fact any of these entities are dumping dangerous chemicals into 
that tributary, then ultimately some child somewhere downstream 
is going to be drinking it. So you have this real conundrum, 
don't you? You want to protect young people from drinking 
water, especially in their formative years, and so it is a very 
profound question that allows somebody just to say, well, I am 
small, so I should be able to dump dangerous chemicals into the 
water. And that is fine for that one entity, but what about for 
all of the children who then have that chemical in their water 
as they are drinking it and as their brains are still being 
formed?
    So I thank you, Mr. Chairman.
    Mr. Leinbach. Senator Markey, one of the problems is the 
definition in Waters of the U.S. of a tributary, and it says, 
``a tributary can be a natural, man-altered, manmade water and 
includes waters such as rivers, streams, canals, and ditches.''
    Our challenge as commissioners, ditches are the areas along 
the side of a roadway which historically have not been 
regulated by EPA and Army Corps. Our challenge is not with 
clean water; our challenge is with the ambiguity of the rule 
itself. Most people would think a tributary is some type of 
body of water, but by its own definition it includes ditches in 
tributary, and that is problematic.
    Senator Markey. And again, I appreciate what you are 
saying, but a ditch used by a nefarious character can just be 
pouring huge amounts of dangerously laced water that has 
chemicals in it into the water. So one person's ditch is 
another person's tributary, especially if it is a bad person, 
and that is what we found in the Woburn Hazardous Waste Site in 
my congressional district.
    They were just dumping all this stuff into the groundwater, 
and that is why all these boys and girls wound up with leukemia 
up there. They were just using it as a place dumping these 
dangerous chemicals, and they did it as secret dumpers at 
night, just unloading it right into the water table; and to a 
certain extent that is what illuminated my attitude toward this 
from the late 1970s on and the creation of Superfund.
    And I would say, Chairman Berrey, that it is critical that 
we do fund Superfunds so that you have the funding that you 
need, but beginning in 1995, as soon as the Democrats lost 
power, there was a defunding of the taxes that the oil 
companies and the chemical companies had to pay into Superfund, 
which would have helped you with your problems.
    Thank you.
    Senator Rounds. As I move to Senator Inhofe, I just think 
part of the challenge here that we are seeing and that I think 
this brings out is that you have counties, who clearly are not 
bad actors, who have ditches that they are responsible for 
maintaining, and yet now they find themselves, under WOTUS, 
having to comply with new regulations that they did not have to 
comply with before, and it is adding to their costs. I think 
that is the point that I was hearing. It is good to have that 
discussion come up.
    Senator Inhofe.
    Senator Inhofe. I think, Mr. Leinbach and Mr. Norris, you 
ought to come out to Oklahoma and talk to our farmers. Tom 
Buchanan, who is the President of the Oklahoma Farm Bureau, 
says, and he is on record saying of all of the problems that 
farmers and ranchers, and we are a farm and ranch State, are 
facing, the worst is nothing that is found in the ag bill, it 
is the overregulation by the EPA.
    And of all the overregulation by the EPA, they say that the 
WOTUS, those regulations scare them the most because you don't 
know. They have different people out there making their 
decisions as to what is good, what is a bar ditch, what is 
something that only has temporary water after a storm. This is 
what I am concerned about.
    Chairman Berrey, tribes have different problems than the 
rest of the people at this table. Do you want to elaborate on 
any of those that are different because of the tribal 
application?
    Mr. Berrey. Well, I think that the real conundrum for 
tribes is some tribes, like the Quapaw Tribe, are 
sophisticated, and we are, with our resources, able to get a 
lot of intellectual help to develop our community. And we 
think, with consultation, if people at EPA would listen to us, 
we could get things done.
    I think my fears are there are rural tribes out there that 
don't have the economic development that we have and the 
opportunities that we have, that they need added sort of 
capacity development to help them develop the regulatory and 
the infrastructure to manage their environment.
    So, fortunately for us, we are very educated about it 
because we are in a Superfund site. But I don't think the 
problem with Superfund is just the lack of funding. A lot of it 
has been the management by the EPA in the clean up since it was 
identified as a Superfund site. They should have sat and talked 
to us a little bit, and we could have saved them about half the 
money they have wasted.
    Senator Inhofe. You know, you and I were both there when 
that happened, and it was a mess.
    Mr. Berrey. Yes, sir.
    Senator Inhofe. Senator Norris, it is interesting. You and 
I have a lot of things in common. I also was the chairman of 
the Oklahoma State Senate. You mentioned the ACIR. I haven't 
heard anyone mention the ACIR, I bet, in 20 years. And 35 years 
ago Lamar Alexander was then Governor of Tennessee. He 
represented the Governors; I represent the mayors.
    And then, of course, you had a representative of every 
political level. And it didn't occur to me until you said that 
that maybe that does have some application here. I mean, if you 
get together, you have the mayors and the Governors and the 
county commissioners and the State legislators, and 
representatives from here, that is a pretty good idea.
    Mr. Norris. Well, thank you, Senator Inhofe. I spoke with 
Senator Alexander several years ago, when this idea began 
percolating, and of course we both share the concern that I 
think was primarily responsible for the sunset of ACIR in the 
early 1990s, and that is as it relates to cost. Apparently it 
was an expensive organization, and there was bureaucracy 
associated with it that he and I would eschew. We are not 
looking to create another department; we are not looking to 
spend a lot of money. But again, I keep using the term common 
sense, and I am glad you picked up on it because there is some 
variation on what used to be ACIR that it seems to me would be 
an effective forum.
    Senator Rounds. What is ACIR again?
    Mr. Norris. The Advisory Commission on Intergovernmental 
Relations. And if I remember correctly, I believe it was in 
1994 or thereabouts that it sunset, as we say in State 
government. And I get that. We don't want to create a new 
bureaucracy, but we need a forum that is recognizable and that 
is recognized where we can exchange these ideas and have better 
results.
    Senator Inhofe. Well, I do want to pursue that with you. I 
think the idea is good. And I want to find out why that was so 
expensive and bureaucratic because, frankly, I don't agree with 
that. We had the periodic meetings.
    Anyway, I do want to get one question in here because we 
recently had Administrator McCarthy, who said that she was 
unaware of any instances, and this will be for you, Mr. 
Leinbach, unaware of any instances where the EPA actions have 
negatively impacted jobs. That was her statement. That is a 
quote.
    When asked about the statement before this committee, 
sitting right here, McCarthy essentially said companies use EPA 
as an excuse.
    Let's start with you and your response to that.
    Mr. Leinbach. First of all, we have had direct experience 
in our own county and counties across the county, and counties 
across the country have experienced the same thing, that there 
absolutely are impacts. I need to emphasize again, as Senator 
Markey made, I think, legitimate points that EPA has played a 
critical role in cleaning up our environment over the last 
number of decades. We are not against the rules. We are 
concerned about the process. And there is an idea of 
federalism, that Federal Government, State government, and 
local governments ought to work together.
    We are not a stakeholder just like anybody else; we are in 
a unique intergovernmental relationship. And counties have 
people on the ground, our engineers, our county planners, 
people that know what needs to be done; and unfortunately, we 
are brought into the process very late in the game and are not 
able to have the impact on the rules. And Waters of the U.S. is 
a great example, and the recent ozone rules. Virtually no say. 
We are part of the partnership, and all we are asking is for 
that partnership to be brought back together.
    Senator Inhofe. Now, of course, we are concerned about 
ozone, too. All these things come within this Environment and 
Public Works Committee.
    Mr. Leinbach. That is correct.
    Senator Inhofe. And that has such an effect on the lives of 
everyone, particularly everyone out there who is in business.
    Under the ozone, of course, that is done by counties, and 
there is legislation that Senator Thune I think is the primary 
mover of the legislation would say we are not going to have any 
more reductions in the ozone until 85 percent or something of 
the counties comply with the old.
    Do you think that is reasonable?
    Mr. Leinbach. That is the position of the National 
Association of Counties, that we should not be imposing new 
ozone regulations until the 2008 standard is met. And I would 
add I have been elected by counties in the northeast United 
States to represent them, and this is an issue we have 
discussed in one of our monthly conference calls, because an 
ozone in the northeast counties, we are unduly impacted by 
prevailing winds. So how is it that we are going to be held 
accountable from a standard when prevailing winds are one of 
the major factors, and we have no control what is happening 
upstream?
    Senator Inhofe. Well, let me ask you again to respond to 
this statement that she made before this committee. I know my 
time has expired, but let me at least get this in.
    Unaware of any instances where the EPA actions have 
negatively impacted jobs.
    Mr. Norris. Senator Inhofe, if I may be recognized. I would 
invite her to Erwin, Tennessee, the tiny town that was home to 
CSX Rail, which just late last year had to shut down its 
operations because of what we call the war on coal, and 300 
jobs were lost overnight. There aren't that many folks in 
Erwin, Tennessee, but I have been over there to talk with them, 
and now we are trying to find ways to retrain them and re-
educate them to get them back to work.
    And I give that example because here we are in Washington, 
DC, and I know we talk in terms of hundreds of thousands of 
jobs. But in a town like Erwin, when 300 people go out because 
of the loss of coal, it hurts; and that is a pretty good 
example.
    Senator Inhofe. Excellent example.
    Senator Rounds. Thank you.
    It would appear to me, as we listen to the witnesses, that 
there is a sense that everybody wants good environmental rules; 
everybody wants good environmental regulations. The challenge 
sometimes is to find that middle ground where we have the 
Federal Government looking perhaps not down at, as you may 
suggest, subnational governments but rather States, counties, 
and municipalities for their input in terms of true 
consultation. And that is kind of what I take away from this 
today, is the desire for true consultation.
    Reasonable people can have clean water and clean air and 
still do it in such a fashion that you have consensus that you 
build at the local level as well, and I suspect that that 
should be our goal and that perhaps we are not doing the best 
job of getting that done in the regulatory processes that we do 
today that could be improved upon.
    Before I close today, I would like to ask unanimous consent 
to enter a letter from the U.S. Conference of Mayors regarding 
a listing of multiple unfunded mandates that have been imposed 
on State, local, and tribal governments into the record.
    Without objection.
    [The referenced letter was not received at time of print.]
    Senator Rounds. With that, once again, I would like to 
thank our witnesses for taking the time to be with us today, 
and I would also like to thank my colleagues who have attended 
this hearing for their thoughts and questions.
    The record will be open for 2 weeks, which brings us to 
Tuesday, June 21st.
    Senator Markey, thank you for your participation and 
discussion as well today.
    And with that this hearing is adjourned.
    [Whereupon, at 3:47 p.m. the subcommittee was adjourned.]

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