[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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Available via the World Wide Web: http://www.gpo.gov/fdsys
__________
U.S. GOVERNMENT PUBLISHING OFFICE
20-736 PDF WASHINGTON : 2016
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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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