    [Senate Hearing 114-364]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-364

     COOPERATIVE FEDERALISM: STATE PERSPECTIVES ON EPA REGULATORY ACTIONS
                    AND THE ROLE OF STATES AS CO-REGULATORS

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

                                     HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 MARCH 9, 2016

                                   __________

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

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

           Available via the World Wide Web: http://www.gpo.gov/fdsys

                                   ___________

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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

                               C O N T E N T S

                                  ----------
                                                                       Page

                                 MARCH 9, 2016
                               OPENING STATEMENTS

    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     3
    Boxer, Hon. Barbara, U.S. Senator from the State of California...   148

                                   WITNESSES

    Mirzakhalili, Ali, Director, Division of Air Quality, Delaware
      Department of Natural Resources and Environmental Control......   149
        Prepared statement...........................................   152
    Markowitz, Deborah, Secretary, Vermont Agency of Natural
      Resources......................................................   159
        Prepared statement...........................................   161
    Huffman, Randy C., Cabinet Secretary, West Virginia Department of
      Environmental Protection.......................................   168
        Prepared statement...........................................   170
    Keogh, Becky, Director, Arkansas Department of Environmental
      Quality........................................................   177
        Prepared statement...........................................   180
    Pirner, Steven M., Secretary, South Dakota Department of
      Environment and Natural Resources..............................   189
        Prepared statement...........................................   191

     COOPERATIVE FEDERALISM: STATE PERSPECTIVES ON EPA REGULATORY ACTIONS
                    AND THE ROLE OF STATES AS CO-REGULATORS

                                  ----------

                            WEDNESDAY, MARCH 9, 2016

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:34 a.m. in room
    406, Dirksen Senate Office Building, Hon. James Inhofe
    (chairman of the committee) presiding.
        Present: Senators Inhofe, Boxer, Capito, Boozman, Wicker,
    Fischer, Rounds, Sullivan, Carper, Cardin, Whitehouse,
    Gillibrand, and Markey.
        Senator Inhofe. The meeting will come to order.
        First of all, I am very happy to have the five witnesses
    that are here today. We always like to hear from the States, at
    least some of us do, and I would like to, at this point, have
    any of our members who want to introduce those from their
    State. Senator Capito, do you?
        Senator Capito. Yes. Thank you, Mr. Chairman. I would like
    to welcome Randy Huffman, who is our Cabinet Secretary, and has
    been for many years, in West Virginia at the Department of
    Environmental Protection. Randy was 3 years as the deputy, but
    he has worked in all variety of areas, including abandoned mine
    lands program. He is a graduate of West Virginia Tech. We see
    him, or I see him, around town all the time, so welcome, Randy.
    Thank you for your testimony and for your service to our State
    and to our Nation.
        Senator Inhofe. And Senator Rounds.
        Senator Rounds. Thank you, Mr. Chairman. Yes, I would.
        First, I would also like to thank all of our witnesses for
    coming here today to testify in front of this Committee on
    State perspectives. I would particularly like to welcome to our
    Committee today the Secretary of the South Dakota Department of
    Environment and Natural Resources, or, as we used to call them,
    Dirt and Water. Secretary Pirner has served as the DENR
    Secretary for three South Dakota Governors, but he has also
    been in various positions at DENR since 1979. Secretary Pirner
    has more than three decades of experience with EPA regulations
    and is truly an expert in the field.
        Secretary Pirner has an impressive breadth of experience in
    every type of environmental regulation. He has extensive
    experience in EPA rules regulating water, air, and toxic
    substances. Secretary Pirner leads an agency with approximately
    180 full-time employees, and this small group of employees is
    responsible for administering nearly all of the Federal
    environmental laws from the EPA such as Clean Water Act, Clean
    Air Act, and Safe Drinking Water Act. They are also responsible
    for administering various State environmental laws in the State
    with over 77,000 square miles of land.
        Secretary Pirner knows all too well the demands of a small
    State agency with limited budgets that they face while
    attempting to administer the increasing multitude of EPA
    regulations forced upon the States. Every day he is confronted
    with the challenge of managing his agency's resources in a way
    that will allow them to fulfill all of their State and Federal
    duties as the environmental regulatory agency in South Dakota.
        It should also be noted that over 30 percent of DENR's
    operating budget is relied upon Federal funds. Every day
    Secretary Pirner's goal is to make sure that South Dakotans
    enjoy the cleanest air and water possible. In South Dakota, our
    environmental record is a source of pride for all of us.
        I can tell you that during the time that I worked as
    Governor in South Dakota for 8 years, Steve was the secretary
    of this department. He comes with a wealth of knowledge and an
    interest in seeing that things get done and get done correctly,
    and I am very, very happy that he has been able to make the
    trek out here for this very special meeting. Thank you.
        Senator Inhofe. It is very nice to have you here.
        Senator Carper, did you want to introduce?
        Senator Carper. Before I introduce Ali, I just want to say
    to Randy welcome. I was born in Beckley and spent a lot of my
    years growing up as a kid going back and visiting my
    grandparents and my aunts and uncles and my cousins all over
    the State. So it is great to have you here. I think you have
    somebody with you today who is from Beckley. Nice to see you.
    Welcome. Good to see you.
        Ali, you have a name that is going to be most pronounced of
    any of our witnesses today. Just to make it easy for my folks,
    it would be easier to call him Ali. But his last name is
    Mirzakhalili. Nice sound to it. When I was Governor, he has
    been serving for the people of Delaware for close to 30 years.
    He has been a key leader in the Department of Natural Resources
    and Environmental Control. He used to work for the guy sitting
    right behind me, Christoph Tulou, who is our Secretary of the
    Department of Natural Resources and Environmental Control. So
    this is like getting the band back together, and we welcome the
    opportunity.
        Ali is the Director of the Division of Air Quality with the
    Department of Natural Resources and Environmental Control. He
    is responsible for implementing all aspects of the Clean Air
    Act requirements. He has 30 years of experience in all aspects
    of air quality management, including program and regulatory
    development, planning, compliance, and enforcement and
    permitting. He is a professional engineer and holds a B.S. in
    Engineering from the University of Delaware, an M.S. in
    Environmental Planning and Management from Johns Hopkins
    University.
        He has been a great servant and friend. Welcome, Ali. We
    are happy that you are here. Thank you.
        Senator Inhofe. Thank you, Senator Carper.
        Becky, we are going to hold you until Senator Boozman comes
    here. I had breakfast with him, a prayer breakfast this morning
    and I told him I would do that, so we will postpone yours.
        Deborah, it is very nice to have you here. We welcome you
    along with the rest of the witnesses.
        Barbara and I will give opening statements, then we will
    hear from you. Since there are five of you, I would like to
    have you comply with the same time that we do up here.

              OPENING STATEMENT OF HON. JAMES M. INHOFE,
                U.S. SENATOR FROM THE STATE OF OKLAHOMA

        Senator Inhofe. Today's hearing is critical to our
    understanding of the success and the lack of success of the
    environmental groups across the Country. Indeed, in
    appreciation of our unique system of federalism, Congress and,
    in particular, this Committee must check in with States to
    ensure this system is fully functioning when it comes to
    actions initiated by the United States Environmental Protection
    Agency, the EPA. For this reason, I want to thank our State
    regulators for being here today to share your feedback on
    whether the current regulatory framework between States and the
    EPA is working in upholding the principles of cooperative
    federalism.
        Cooperative federalism is a core principle of environmental
    statutes, including the Clean Air Act, the Clean Water Act, the
    Safe Drinking Water Act, RCRA, and several others.
    Unfortunately, under the Obama administration we have observed
    a flood of new regulations breaking down this system in what
    seems to be uncooperative federalism. The Obama EPA has
    embarked on an unprecedented regulatory agenda that simply runs
    over States by imposing an increasing number of Federal
    regulatory actions on States while requesting even less funds
    to help States carry out these actions. As some State
    regulators have explained, EPA is requiring them to do more
    with less.
        Many of these actions are driven from the EPA headquarters
    to fulfill a political agenda that often results in years of
    litigation and inefficiencies that cost citizens more taxpayer
    dollars and reap little to no environmental benefits.
        Today we have a diverse panel of witnesses from States
    across the Country working with different EPA regions and
    experiencing unique environmental issues who will expand on
    this breakdown. While State feedback varies, there are several
    troubling themes that have consistently emerged. EPA has
    neglected the responsibility to consult with States at the
    beginning stages of regulatory actions; the EPA gives States
    little time to digest complex regulations and provide
    meaningful analysis during short comment periods; EPA has
    allowed environmental activists to set regulatory deadlines
    imposed on States through sue-and-settle agreements without
    State input; EPA has increasingly used regulatory guidance to
    circumvent the regulatory process; EPA has a severe backlog of
    approving State implementation plans, yet has issued an
    unprecedented number of Federal implementation plans over State
    air programs; EPA budget requests have called for decreased
    levels of State funding while requesting increased funds for
    EPA bureaucrats; and EPA is deviating from its core functions
    and duty to uphold cooperative federalism as we have defined
    it.
        These concerns are not limited to our witnesses today. Last
    month I sent letters to all Committee members' State
    environmental agencies asking for feedback on EPA actions and
    the level of cooperative federalism. I appreciate the many
    responses I got to this Committee and, without objection, will
    make them part of the record.
        [The referenced information follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. I look forward to receiving additional
    State responses and to hear more from our witnesses today as we
    take a hard look at what works and what does not work.
        And to hear the other side, Senator Boxer.
        [The prepared statement of Senator Inhofe follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                OPENING STATEMENT OF HON. BARBARA BOXER
               U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Boxer. How did you know?
        [Laughter.]
        Senator Boxer. Friends on the panel, thank you all for
    being here, and do count me in on people who want to hear from
    the States. So many of our States are leaders on the
    environment, my own being a prime example. We have proven that
    we can cleanup our environment and also create very good paying
    jobs, and it has been proven over and over again.
        I think that all wisdom certainly does not reside here. I
    think every one of us would say that. And that is why I have
    always liked the idea of minimum standards being set by the
    Federal Government to protect all of our people, but allowing
    the States to do more to protect their people from pollution;
    and that is really at the heart of what this debate is all
    about. To me it is not about States' rights, it is about
    protecting people at a minimum level and then allowing the
    States to do more if they want to.
        Now, States have a very important role to play in carrying
    out our landmark environmental laws, which we can talk about
    them all day. I will make a prediction: We will never repeal
    the Clean Air Act. We will never repeal the Clean Water Act. We
    will never repeal the Safe Drinking Water Act. We will never
    repeal the Superfund Act. We will never repeal the Brownfields
    Act. Why? Because 90 percent of the American people support
    that.
        So what happens here in this committee, since my friend
    took the chair, it was tough to swallow, but nothing personal,
    what has happened is we are trying to see an undermining of
    those laws through the back door, making it impossible,
    lawsuits and the rest. So I just want to say this, and I will
    ask unanimous consent to place my full statement in the record.
        Senator Inhofe. Without objection.
        Senator Boxer. You have to learn, all of us, by what
    happens. We have to learn history; we have to look at current
    events. And I am speaking for myself and only for myself when I
    say this. When I look at what happened in Michigan, when I look
    at the way that State handled the situation in Flint, I think
    for us to be holding a hearing saying the Federal Government
    shouldn't do anything, the fact is EPA, in writing, warned
    them.
        Did the EPA do enough? Not in my book. But they warned them
    in writing. They told them to put anti-corrosive treatment into
    those pipes. They ignored it. And I am not pointing the finger
    at any one person, but somebody there is going to be blamed for
    this at the end of the day when the suits finally come to the
    courts.
        But to me it is a moral crime. It is a moral crime. So to
    just say the States should do it all, there shouldn't be
    minimum standards, we shouldn't really triple-check these water
    systems, I just don't buy it. And I think that what our laws do
    I think are very happy compromise between the right of the
    people who vote for president, who vote for senators, who vote
    for House members, to know they will have a basic standard so
    that they can be protected and their children can be protected,
    and then say to the States, look, you are the laboratory. If
    you can do more, fine, but protect them to at least a minimum
    level. And that has been the way I have viewed this job. That
    is why when we preempt States on this I think it is a terrible
    thing to do, and I have shown that through my whole career.
        But again I want to say thank you all, whether you agree
    with me or not. I know two do and three don't, something like
    that. But I am very happy to see all of you here.
        Senator Inhofe. Thank you, Senator Boxer.
        Senator Boozman, would you like to introduce your guest
    from Arkansas? I already told her I was about half hog and
    explained the genesis of that statement.
        Senator Boozman. Well, in the interest of time, I just want
    to thank her for being here and thank her for the tremendous
    job that she is doing in Arkansas. We are very grateful to have
    her onboard.
        Like I say, we are just very pleased that you are here and
    all that you represent. Thank you.
        Senator Inhofe. Thank you, Senator Boozman.
        We are going to start with you, Ali. I am going to follow
    the direction of Senator Carper and take your short name, all
    right? You are recognized.

       STATEMENT OF ALI MIRZAKHALILI, DIRECTOR, DIVISION OF AIR
         QUALITY, DELAWARE DEPARTMENT OF NATURAL RESOURCES AND
                         ENVIRONMENTAL CONTROL

        Mr. Mirzakhalili. Chairman Inhofe, Ranking Member Boxer,
    and members of the Committee, my name is Ali Mirzakhalili, and
    I am Delaware's Director of Air Quality. I thank you for the
    opportunity to testify today.
        I would like to share with you Delaware's view of the
    respective roles and responsibilities of the EPA, State, and
    the U.S. Congress with respect to complying with various
    environmental statutes and associated regulatory actions to
    protect public health and the environment.
        The Clean Air Act has been a huge success, preventing
    literally hundreds of thousands of premature deaths, as well as
    averting millions of incidents of morbidity. The health
    benefits associated with the Clean Air Act far outweigh the
    cost of reducing pollution by more than 30 to 1. Moreover, we
    have accrued these health benefits over the same period as our
    Nation's gross domestic product has grown. It is fair to say
    that the Clean Air Act has not only been one of our Nation's
    most effective environmental statutes; it is likely to go down
    in history as one of the most effective domestic laws ever
    passed.
        The public generally does not differentiate between levels
    of government; it simply expects the entire system to work.
    Therefore, it is imperative that each part of Government, EPA,
    Congress, and the States, fulfill its respective roles and
    perform as effectively as possible.
        As I State in my written statement, I believe EPA can best
    fulfill its role by focusing on six important tenets: one,
    using sound science to set national standards; two, providing
    States flexibility to meet those national standards; three,
    issuing guidelines and rules in a timely manner; four, ensuring
    that States are held accountable for their actions; five,
    providing a level playing field; six, setting standards for
    sources of pollution that are of national significance and
    where States may be preempted from doing so.
        Congress also has a major responsibility in environmental
    protection, including, most importantly, ensuring that it
    provides adequate funding to EPA and the States to assist in
    meeting our Nation's clean air goals. Unfortunately, in recent
    years Congress has fallen short in this respect. The Clean Air
    Act authorizes the Federal Government to provide grants for up
    to 60 percent of the cost of State and local air pollution
    control programs, and calls for States and localities to
    provide a 40 percent match. Unfortunately, this has not been
    the case. State and local responsibilities have expanded
    significantly since 1990, while the grants have not, resulting
    in Delaware and most other States self-funding over 75 percent
    of their air programs' operating budget.
        Despite all these challenges, States are trying to do their
    best to comply with all EPA rules and regulations under the
    Clean Air Act. In Delaware, I am proud to say we are meeting
    all of our Clean Air Act obligations. We succeed by being
    proactive, collaborative, and focusing our limited resources so
    as to ensure all emitting sources in the State are reasonably
    and appropriately controlled.
        This year States face a number of important regulatory
    deadlines under the Clean Air Act. These deadlines do not
    differentiate between large States with ample resources and
    small States like ours with fewer resources. I believe
    Delaware's practice of ensuring all emitting sources are
    appropriately controlled is key to our ability to manage this
    workload in light of insufficient funding. If we can do it, so
    can others.
        Because of Delaware's effort to attain and maintain
    compliance with earlier particulate and ozone standards, those
    efforts are not wasted, and the Regional Haze program, Delaware
    is complying with the 2012 PM2.5 standards and is subject only
    to the first of the three sulfur dioxide requirements. These
    deadlines do not represent an unmanageable workload for
    Delaware in 2016.
        We are continuing to work this year to reduce greenhouse
    gas emissions, which are endangering public health and welfare.
    This year Delaware will continue its work under the Regional
    Greenhouse Gas Initiative and prepare our State's strategy
    under the Clean Power Plan. I believe the CPP is an excellent
    example of how EPA is thoughtfully and successfully working
    with States and stakeholders to craft achievable and flexible
    rules.
        Delaware continues to experience poor air quality, however,
    and impacts from ozone on public health and our economy.
    Delaware's emissions control efforts to reduce ozone precursor
    emissions have resulted in a situation where over 90 percent of
    the ozone concentration adversely affecting Delawareans are
    attributable to emissions transported into Delaware from upwind
    States. Under the Clean Air Act, upwind States were required to
    mitigate these emissions more than 5 years ago, yet they have
    not done so.
        In some cases the problem is that upwind emitting sources
    have not controlled the emissions; in others appropriate
    emission controls have been installed on units but, incredibly,
    are not being operated. Any action this Committee can take to
    require upwind States to comply with the Clean Air Act and to
    increase EPA's resources to enable the Agency to ensure equity
    would greatly help Delaware and others in similar situations.
        Thank you for this opportunity to testify. I look forward
    to answering questions.
        [The prepared statement of Mr. Mirzakhalili follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Ali.
        Ms. Markowitz.

     STATEMENT OF DEBORAH MARKOWITZ, SECRETARY, VERMONT AGENCY OF
                           NATURAL RESOURCES

        Ms. Markowitz. Good morning, all. My name is Deb Markowitz.
    I am the Secretary of Vermont's agency of Natural Resources,
    and I know if Senator Sanders was not in Florida, he would be
    introducing me today.
        Thank you for inviting me to testify on cooperative
    federalism and environmental regulation.
        Vermont is a delegated State. This means we take
    responsibility for the oversight and implementation of Federal
    environmental programs. We implement the Resource Conservation
    and Recovery Act, the Clean Water Act, and the National
    Pollution Discharge Elimination System Permit Program, the
    Clean Air Act, and the Safe Drinking Water Act.
        Vermont chose to take on these federally delegated
    programs; EPA did not force us to do so. The Federal Government
    didn't require it. Vermont chose to take responsibility to
    implement these important regulatory programs in our State
    because we know how important they are to Vermonters' health,
    safety, and prosperity.
        Not only do we rely on clean air and clean water and clean
    land to protect the health of our people, but Vermont has a
    land-based economy. Our top industries include tourism,
    agriculture, and forestry. Each relies on a clean and healthy
    natural environment. People come from all over the world to
    swim in our lakes, fish in our rivers, hike in our forests, and
    ski in our mountains. But this isn't all. In our manufacturing
    and high-tech sectors, indeed, in every sector of business and
    industry in Vermont, it is the natural beauty of our State and
    our pristine environment that enables us to attract good jobs
    and high quality employees to stay or relocate in Vermont.
        By managing these delegated programs, Vermont can ensure
    that our State is protected through regulation, assistance, and
    enforcement. This local control is even more important in light
    of the highly charged political dialog that our environmental
    laws and regulations engender here in Washington.
        While new rules promulgated by EPA take time and effort for
    us to implement in our States, there are many good reasons to
    support a strong Federal approach. First, we look to EPA for
    the expertise to study and develop the science and technology
    that underlies our environmental regulations. We could not meet
    our mission to protect human health and to safeguard our
    natural environment without this important Federal
    contribution.
        Second, we see value in having national standards for
    environmental protection. As the children in Rutland, Vermont
    who suffer from asthma and the anglers who can't eat the fish
    they catch because of mercury pollution know well, pollution
    does not honor State lines. EPA has given us many important
    protections and Vermonters, as well as all Americans, have come
    to depend upon them.
        Finally, national environmental regulations provide an even
    playing field among States, helping to prevent a regulatory
    race to the bottom in a misguided attempt to attract economic
    development.
        It is important to acknowledge that the System of co-
    regulation between EPA and the States is not always simple or
    without a natural tension. There are times when we want to
    address a problem differently than EPA's approach did in the
    past, or when the Federal approach may have unintended
    consequences for us in Vermont because of our small size and
    rural character. In situations like these, we have found EPA
    willing to listen to our concerns and to work with us to find a
    solution.
        On numerous occasions and across sectors the EPA has
    supported Vermont in our efforts to implement programs to
    protect the environment. EPA has allowed flexibility in
    Vermont's program implementation, cooperated with us to achieve
    our shared environmental goals, included Vermont's voice in
    efforts to develop new rules and standards, and has shared
    resources and expertise to help us more efficiently and
    effectively implement our programs.
        In my written testimony I have included a number of
    specific examples, if that would be helpful.
        In closing, I want to reiterate the value of our
    relationship with EPA and that, for Vermont, this partner is
    essential to protect our environment and the health of our
    citizens, and exemplifies the doctrine of cooperative
    federalism, and I am very happy to take questions. Thank you.
        [The prepared statement of Ms. Markowitz follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you.
        Now, Mr. Huffman.

    STATEMENT OF RANDY C. HUFFMAN, CABINET SECRETARY, WEST VIRGINIA
                 DEPARTMENT OF ENVIRONMENTAL PROTECTION

        Mr. Huffman. Good morning, Mr. Chairman and members of the
    Committee. Thank you for the opportunity to address this
    Committee concerning federalism and environmental regulations.
        As West Virginia's chief environmental regulator, I view
    the cooperative relationship with our Federal partners
    envisioned by Congress in all of our environmental statutes as
    critical. According to the environmental council or the States,
    over 95 percent of the environmental regulatory duties in this
    Country are actually carried out by the States. Congress placed
    the most important core responsibilities with the States
    because it knew States are far more responsive to local
    concerns and much more aware of the local environment than
    distant bureaucracies.
        In addition, States must be cost-effective, have balanced
    budgets, and perform in the face of flat or declining revenues.
    It is within these constraints that States have repeatedly
    demonstrated not only that we are up to the challenge, but that
    we actually continue to deliver the results Congress envisioned
    when it created our environmental framework within the model of
    cooperative federalism.
        Unfortunately, federalism under the current Administration
    has been less than cooperative with both EPA and Interior's
    Office of Surface Mining. There is a constant flow of new
    regulations, guidance and initiatives from these Federal
    agencies, and much of it encroaches on the authority Congress
    gave to the States, and nearly all of it adds new regulatory
    burdens to State resources that are already stretched thin. At
    best, EPA and OSM are indifferent to the mounting consequences
    of their actions. At worst, we see these Federal agencies
    continue to basically rewrite our Nation's congressional
    environmental acts with no accountability.
        I have many examples, but time will only permit me to cover
    a few.
        My first example is one with which we are all familiar.
    Regardless of the position individual States take on climate
    change, Section 111(d) of the Clean Air Act actually puts the
    States, not EPA, in charge of developing standards of
    performance. With little regard to the role Congress gave it,
    EPA has seized the States' authority. Its carbon rule
    establishes the minute details of one of the most complex new
    regulatory initiatives in the history of the Clean Air Act.
        EPA is increasingly establishing what amounts to binding
    rules through guidance. States are expected to conform to the
    results of this process as if EPA had promulgated a valid rule.
    There are at least two problems with this: EPA guidance further
    eliminates State discretion and it allows them to avoid the
    accountability and transparency of rulemaking.
        My final examples relate to similar actions by Interior's
    Office of Surface Mining. The proposed Stream Protection Rule,
    which I testified about before the Senate Energy and Natural
    Resources Committee in October, is another example of a Federal
    agency attempting to rewrite part of an act of Congress with no
    mandate to do so. They further fail to involve the States,
    which have primacy under the Surface Mining Act to carry out
    these duties. The result is a proposal that has multiple
    unlawful conflicts with Federal and State clean water laws.
        OSM also routinely fails to approve State program
    amendments upon which it is obligated to act. In fact, since
    2009, West Virginia has submitted nine amendments to the Office
    of Surface Mining for consideration, and only those that
    propose to increase fees or taxes on the mining industry have
    been approved, and only then on an interim basis.
        My last example is OSM's misuse of 10-day notices to
    correct permit defects. Ten-day notices are an OSM obligation
    under the Surface Mining Act to notify the States when a mining
    violation is suspected and has not been properly addressed. It
    is clearly an enforcement measure to be applied to active
    operations. In 2009, OSM was directed to use this regulatory
    tool to correct deficiencies in State-issued permits, which is
    clearly contrary to the Surface Mining Act.
        Most States, including West Virginia, embrace the idea and
    practice of cooperative federalism in regulating industrial
    activity and protecting the environment. The practice is sound,
    has great validity, and has been successful in the past. Since
    2009, I have watched EPA and OSM go about executing an agenda
    that does not concern itself with the rule of law for making
    changes to our Nation's environmental statutes.
        I don't want to create the impression that all of West
    Virginia's interactions with EPA and OSM are negative. Across
    many of our programs we have built very good working
    relationships with our Federal counterparts at the regional
    level. Most of the issues I have discussed appear to emanate
    from EPA and OSM headquarters, which have little or no
    understanding of what it takes to run a State environmental
    regulatory program.
        [The prepared statement of Mr. Huffman follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Mr. Huffman.
        Ms. Keogh.

      STATEMENT OF BECKY KEOGH, DIRECTOR, ARKANSAS DEPARTMENT OF
                         ENVIRONMENTAL QUALITY

        Ms. Keogh. Chairman Inhofe, Ranking Member Boxer, and
    Senator Boozman, as well as members of the Committee, good
    morning. I bring you greetings from Governor Hutchinson of
    Arkansas, and I appreciated the opportunity to respond to your
    call this morning.
        We in Arkansas are seeking to drive regulatory policy that
    balance effective environmental results, assure long-term
    resource management, affordable energy, and economic growth
    goals. We want a State that can seek to attract the newest
    generation of professionals searching out healthy living
    lifestyles and Arkansas's world-class recreational
    opportunities.
        Arkansas has invested heavily in assuring that we are wise
    stewards of the abundant and clean air, healthy breathing air,
    the amazing vistas with which we have been blessed. We do not
    take our status as The Natural State lightly. In fact, we
    strive to fairly and consistently the corresponding and
    complimentary roles of environmental stewardship and economic
    development.
        Likewise, for decades we have successfully worked with EPA
    under a symbiotic governing model that is the topic of today's
    hearing. This notion is born of something uniquely American,
    our system of federalism whereby the Nation and States function
    together as co-sovereigns. Both the EPA and States had a
    relatively balanced seat at the table, and we are known to do
    in the south, we would all sit around the table and have a good
    old-fashioned meal. There would be lively debate, ample
    servings, and we would cooperate and prepare a meal together.
        However, this once treasured family style dining with our
    Federal partners has become a thing of the past. Now we have an
    increasingly diminished role in the menu selection and meal
    preparation. We are often forced to eat what is served.
        The cooperative federalism model that has defined
    Arkansas's relationship with EPA beginning in the 1970's has
    morphed into something that is better described today as
    coercive federalism. We have seen a decrease in time and
    tolerance for State implementation plans and a dramatic
    increase in EPA takeovers, or Federal Implementation Plans.
    Historically, these FIPs were used as weapons of last resort
    for our EPA partner, its nuclear option for States that were
    unfaithful to the partnership or denied marriage outright.
        Now FIPs are often used as an everyday tool, often of
    dubious origin, in the EPA's vast arsenal. In the past 7 years,
    States have been forced to digest more of these Federal
    takeovers, known as FIPs, than were ever served in the prior
    three Federal Administrations combined ten times over.
        States will not waste the time to draft their own proposals
    if they expect the Federal Government to do what it wants to in
    the end. State sovereignty is diminished, and the opportunity
    for local innovation is destroyed. Cooperation should be
    fostered, not discouraged. We call on you, our Congress, to
    help remedy this broken marriage through amendment or ancillary
    legislation.
        States are placed in the unfair position of having
    purchased a very expensive seat at the table, but then finding
    out meals are served exclusively from the EPA table. We are to
    be served a fixed menu without a fixed price. States'
    willingness to split the check, and occasionally buy dessert,
    was mitigated by a healthy respect and accompanying deference
    we received. Now we ask your assistance in resetting that
    needle to its point of origin.
        For air pollution, we seek air pollution prevention and
    control is the primary responsibility of the States and local
    governments. In our estimation, Congress should ring the dinner
    bell calling for the meal to be served. States should host that
    occasion and EPA should be a frequent and faithful guest at
    each State's table. However, where we are now we can best
    describe as a progressive dinner party gone bad.
        States have recognized an unprecedented level of Federal
    actions. To borrow a saying in the South, we have more on our
    plate than we can say grace over. The sheer number of mandates
    and deadlines further complicated by the complexity of the
    rules leaves us in a position where being served appetizer,
    soup, salad, main course, and dessert all at the same time. And
    if we do not clean our crumbs, we are banished from the table.
        States rarely have sufficient notice and implementation of
    the rules to establish meaningful outcomes before moving to the
    next one, and we are left unable to get a taste of one course
    before the next one arrives. The EPA is afforded the luxury of
    being the ultimate picky eater while they select what they
    prefer on the menu, while we States are struggling to digest
    the meals plus leftovers.
        The reality that States are often now more pawn than
    partner is nowhere more evidenced in the EPA's transformation
    from a two-sentence legislative passage to the Clean Power
    Plan, which had profound consequences and extraordinary costs.
    Arkansas is seeking ways to work with how we can work with EPA
    on consolidating efforts and superseding FIPs and SIPs without
    facing legal conflicts.
        In addition to the Clean Water Act, the State-developed
    robust eco region natural condition water criteria in Arkansas
    have now become unrealistic and often unachievable minimum
    water protection standards. In this case, EPA has executed an
    ultimate bait and switch.
        Serving up cooperative federalism in a coercive manner is
    distasteful, but the executive branch to ignore at our
    metaphorical table that are stabilized by three legs and not
    just one makes for a difficult and messy meal. We do want a
    seat at this table. We should not be fed the regulation of the
    day. In fact, the great majority of the FIPs we have result
    from reinterpretation of the good neighbor provisions.
        In conclusion, not only has the uniquely American
    cooperative federalism model fallen, and the State role is now
    less partner and more pawn, we do see sue and settle appearing
    on the menu. We are left to wonder if special interest groups
    currently occupy our seat at the table that once was reserved
    for us. When States are disenfranchised, so is the truth of our
    Federal democracy and the people we represent.
        Thank you.
        [The prepared statement of Ms. Keogh follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Ms. Keogh.
        Mr. Pirner.

        STATEMENT OF STEVEN M. PIRNER, SECRETARY, SOUTH DAKOTA
            DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES

        Mr. Pirner. Chairman Inhofe, Ranking Member Boxer, members
    of the Committee, my name is Steve Pirner, Secretary of the
    South Dakota Department of Environment and Natural Resources. I
    appreciate the opportunity to share with you our perspectives
    on why we do not believe the current regulatory framework
    between EPA and the States upholds the principle of cooperative
    federalism.
        Let me provide you a few examples.
        To help fund the administration of Federal regulatory
    programs, EPA awards us a Performance Partnership Grant. In
    2012, the Grant peaked in funding, but has declined during the
    last 3 years. This decrease is certainly inverse to the huge
    increase in Federal requirements for delegated programs and, in
    our view, is an erosion of cooperative federalism.
        An increase of Federal preemption on what we hold as State
    rights is also detrimental to cooperative federalism. For
    example, EPA and the Corps of Engineers developed a rule
    intending to clarify which water bodies are subject to
    jurisdiction under the Clean Water Act. The rule has faced
    substantial opposition in South Dakota and we joined a lawsuit
    with 12 other States to block the rule. Upon joining the
    challenge, South Dakota Attorney General Marty Jackley was
    quoted as saying, ``The EPA is overstepping its congressional
    authority and seizing rights specifically reserved to the
    States.''
        Also under the Clean Water Act, EPA has proposed or
    finalized new national water quality and effluent standards for
    ammonia, nutrients, selenium, and dental offices. The bottom
    line is that these new, more stringent standards are going to
    cause additional wastewater treatment, which is going to drive
    wastewater treatment costs up, perhaps to the point of being
    cost-prohibitive.
        Under the Resource Conservation Recovery Act, EPA finalized
    regulations to regulate coal ash. This was prompted by the
    liquid coal ash spill in Tennessee. Our single coal-fired power
    plant, the Big Stone Power Plant, disposes of only dry ash, but
    is still subject to the new rules which preempt DENR's existing
    solid waste permit.
        In a settlement agreement under the Clean Air Act between
    EPA and the Sierra Club, the Big Stone Power Plant was listed
    as a large source and needing to demonstrate compliance with
    EPA's 1-hour sulfur dioxide standard. EPA never took into
    account the new air pollution controls installed at a cost of
    $384 million to meet the Regional Haze Rule. There is no doubt
    these new controls will reduce sulfur dioxide emissions below
    the thresholds established in the consent decree.
        Another Clean Air dispute involves ozone. South Dakota is
    one of only 10 States in the Nation that is in full attainment
    with the national ambient air quality standards but, against
    our recommendations, EPA adopted a new, lower standard for
    ozone. We are now at risk of having a non-attainment status;
    not because our air has gotten dirtier, but because EPA lowered
    the standards potentially below our background levels.
        In response to another petition from the Sierra Club, EPA
    determined that certain startup, shutdown, and malfunction
    exemptions in 36 States, to include South Dakota, are
    inadequate under the Clean Air Act and need to be eliminated.
    Our exemption allows for brief periods of visible emissions
    because certain pieces of equipment are not fully functional
    when these events take place. DENR's rule was first established
    in 1975, was approved by EPA, and has not caused or interfered
    with South Dakota staying in compliance with the national
    standards. South Dakota has joined Florida's lawsuit against
    the rule, along with 15 other States.
        The final rule that highlights the lack of cooperative
    federalism is the carbon dioxide standard for existing power
    plants. In 2012, which is the base year that EPA used, 74
    percent of the power generated in South Dakota came from
    renewable sources. In spite of this remarkable record, EPA's
    rule threatens the economic viability of the two fossil fuel-
    fired power plants that we do have in the State and could
    strand the Regional Haze controls previously mentioned at the
    Big Stone Plant. Here again our attorney general has joined
    lawsuits against the rule, most notably with West Virginia.
        The bottom line is these new Federal requirements will have
    a huge impact on our citizens and on our economy, but will
    produce little or no known noticeable benefits in South Dakota.
    For this reason, we believe that each State should have the
    right and the freedom to address these issues individually,
    using the principles of cooperative federalism and Executive
    Order 13132 on federalism. As stated in the Executive Order,
    ``The Framers recognized that the states possess unique
    authorities, qualities, and abilities to meet the needs of the
    people and should function as laboratories of democracy.'' That
    is not the case now.
        I hope this information is useful to the Committee. Thank
    you again.
        [The prepared statement of Mr. Pirner follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Mr. Pirner.
        All right, would you hold the poster up that we have there?
        Ms. Keogh, according to this December 2015 timeline by the
    Association of Air Pollution Control Agencies, there are nine
    Clean Air Act deadlines for States this year alone. Your
    testimony describes a number of these EPA actions as, and I am
    quoting now from your statement, ``we have, at best,
    overlapping and, at worst, conflicting directives.'' Can you
    explain how competing deadlines impact your department?
        Ms. Keogh. Thank you, Chairman. It is a bit frustrating as
    we seek implementation of these numbers of regulations in a
    very short timeframe. What we see as our program staff evaluate
    these rules and seek implementation, we are modeling different
    and often conflicting results for the exact same source or the
    facility, and it often ignores the progress that the States are
    already making, or continuing to make, on different timeframes.
        Senator Inhofe. Thank you very much.
        Mr. Huffman, on February the 23d of 2016, I led some 200
    House and Senate members, 34 of those were Senate members, in
    filing an amicus brief with the D.C. Circuit in opposition to
    EPA's Clean Power Plan.
        I did observe, Ms. Markowitz, you were the only one talking
    favorably about the Power Plan, but I have to point out that is
    because you are one of four States that is exempt from it. So I
    think the others would probably agree with you if that were the
    case.
        Anyway, the brief argues, among other things, that the
    Clean Power Plan violates the Clean Air Act's principle of
    cooperative federalism, explaining, quoting from the brief,
    ``The EPA takes a coercive approach that commandeers the States
    to implement and enforce the Agency's power choices.''
        So I would ask Mr. Huffman, do you agree that the Clean
    Power Plan coerces States to implement EPA's policy choices,
    not the choices of States?
        Mr. Huffman. Yes, Senator. I believe EPA's biggest
    challenge in implementing the Clean Power Plan is it had to go
    about it in a way that is unconventional. Typically, EPA will
    regulate pollutants at the end of the stack, if you will, or at
    the end of the pipe. And with regard to the Clean Power Plan,
    the only way to do that would be to put a regulatory number, a
    limit on carbon dioxide. And the only way to do that in a way
    that gave the effect that they would want would essentially
    shut down all fossil fuel production in this Country.
        So the way they went about managing every minute detail of
    how this Clean Power Plan should be implemented we think ran in
    conflict with Section 111(d) of the Clean Air Act, which gives
    the States the authority to establish those performance
    standards; and EPA has done that instead of setting the
    threshold and allowing the States to figure out how to do it.
        Senator Inhofe. All right, thank you.
        Mr. Pirner, there is a little bit of confusion, lack of
    clarity following the Supreme Court stay of the Clean Power
    Plan. Has your State continued to work on the rule? And if the
    stay is ultimately lifted, do you expect compliance deadlines
    to be extended? In other words, are you continuing to work as
    if the stay were not a reality? How are you preparing for it?
        I might ask the others the same thing.
        Go ahead.
        Mr. Pirner. Mr. Chairman, our plan before the stay was
    issued was to proceed along a path such that we could do enough
    to get the 2-year extension. EPA had said that that was not
    going to be a high bar to reach, so we read through what they
    were going to require and we had started to work on those
    items. One of those items was a public participation process.
    In response to that, we established a Website where people
    could view some information and give us comments. We had also
    scheduled some public input meetings.
        The day after the stay was issued we canceled those public
    meetings. The word that we are getting back from the legal team
    that is leading that lawsuit is that they expect those
    deadlines will be adjusted by the courts once the decision is
    made.
        Senator Inhofe. But expecting that and knowing that are two
    different things.
        Mr. Pirner. Yes, sir.
        Senator Inhofe. Anyone else want to comment on that?
        All right, Senator Boxer.
        Senator Boxer. Thank you, Mr. Chair.
        Mr. Mirzakhalili, as you described in your testimony,
    Delaware is a downwind State, such as Rhode Island, I am sure
    we will hear more about that, and much of the air pollution in
    your State comes from upwind States. You say that ``it is EPA's
    role to ensure equity between where pollution is produced and
    where it is received.''
        It seems to me that is right spot on. So if EPA did not set
    minimum standards and all this went to your neighboring State
    who is sending smog and everything else over your way, and we
    left it all to each State, what would it be like for the people
    of Delaware in terms of asthma, in terms of COPD, and the other
    problems that come from filthy air?
        Mr. Mirzakhalili. Thank you for the question, Senator
    Boxer. I can answer that by saying they will be having a feast
    while we get the smoke in our eyes. We suffer from the
    consequence of those emissions if they are unabated. As I
    mentioned in my testimony, some of those are simple to remedy.
    The equipment has been installed, and they are just not
    operating because the current scheme is a cap control.
        Senator Boxer. Thank you. You answered that very well.
        Ms. Keogh, I would love to be invited to your house for
    dinner, because you obviously are focused on that, and it would
    be fun. So you just heard our witness from Delaware talk about
    the fact that if we didn't have these basic minimum standards
    his State, they are wonderful people there, but they are
    located in a place where they get those winds and they get that
    pollution.
        So if your State was in that circumstance, I know you do
    get some pollution from surrounding States, but not to the
    extent that some of these other States get it, wouldn't you
    think it would be fair to limit that pollution? Because
    wouldn't you be concerned? The science tells us there is a
    direct link between dirty air and asthma and COPD and worse.
        Can you understand their point, is what I am asking.
        Ms. Keogh. Yes, Chairman.
        Senator Boxer. Ranking Member.
        Ms. Keogh. Ranking Member. I apologize.
        Senator Boxer. It doesn't matter. He would be unhappy if
    you called me chairman.
        Ms. Keogh. I understand that.
        With due respect, Chairman.
        Arkansas does have very clear air and healthy air, and it
    is difficult for a State like Arkansas to reflect on the model
    assumptions that are made to implicate States which measure and
    monitor such clean air against other States or impacting those
    States.
        Senator Boxer. But that wasn't my question. My question was
    if you were one of those States that got a huge amount of
    pollution from a next door State which did nothing to prevent
    it, would you put yourself in the shoes of Delaware or Rhode
    Island or these other States? It is just a simple yes or no.
        Ms. Keogh. Our States work together when we have a
    situation like that. We have worked with our neighboring
    States.
        Senator Boxer. OK, so your position is that your State can
    tell another State what to do, and you are criticizing the EPA.
    Now you are going to say one State is going to tell the other
    State what to do. It is not realistic at all, and that is the
    reason we passed Federal legislation, under Nixon, I might say.
        Ms. Markowitz, can you explain why it is essential that we
    have national minimum standards, while also allowing States to
    be more stringent in protecting their citizens?
        Ms. Markowitz. We are also an upwind State, so we are also
    suffering. Vermont is a clean green State. We have some of the
    worst air pollution in the Country in the little town of
    Rutland, and that is because of the way the winds come from
    coal-burning States into Vermont, and that is a problem for us.
    And we have tried to work cooperatively with these States to
    put in place those pollution controls that in many cases they
    already have.
        But in Vermont we want to do more. We recognize that we
    have this culture of environmentalism, but, at a baseline, when
    other States want to do less, it impacts our quality of life.
        Senator Boxer. OK, let me interrupt you only to say you are
    making my point. Minimum Federal standards let the States do
    more.
        Ms. Markowitz. That is right.
        Senator Boxer. And I think that is what the beauty is of
    the Clean Air Act which is under such fierce attack.
        Now, Mr. Huffman, the January 2014 spill from the Freedom
    Industry's chemical storage facility contaminated the drinking
    water supply of more than 300,000 residents of Charleston. You
    know that. We are now facing another drinking water crisis in
    Flint, Michigan, where children were poisoned by the city's
    toxic drinking water. Given these events, do you think EPA and
    the States should be doing more, not less, to protect the
    public's drinking water?
        Mr. Huffman. Yes, Senator. I think that your point about
    minimum Federal standards and then let the States figure it
    out, that is absolutely the model that we should be following.
        Senator Boxer. Good. Good.
        Mr. Huffman. That is absolutely what we should be doing. My
    point today, and I think the frustration with West Virginia,
    with some it has been about what those standards are, but the
    real problem for me as a regulator is the way they go about
    implementing these standards. They are bypassing the guidelines
    under the Federal environmental statutes for how to implement
    one of these changes in minimum standards.
        Senator Boxer. Well, Mr. Huffman, since my time has run out
    and my chairman is coughing, which means he wants me to stop,
    let me just say that I really respect what you just said. I
    don't think that any agency, the Federal Government or any
    State agency, should overstep its bounds. So we will talk more
    about, because I think what you said is very fair. Minimum
    standards, yes, but implemented in the right way.
        Mr. Huffman. Correct.
        Senator Boxer. Thank you.
        Senator Inhofe. Thank you, Senator Boxer.
        Senator Rounds.
        Senator Rounds. Thank you, Mr. Chairman. We pride ourselves
    in South Dakota with the clean air. We do have challenges at
    times. If there is a forest fire in California, we suffer from
    the smoke from that. So we understand, when you talk about you
    want clean air. We want it too. We think we do a good job in
    our State.
        Secretary Pirner, you have spent decades administering and
    implementing environmental regulations on both the State and
    the Federal level. Can you discuss, in your experiences, the
    differences you have seen in terms of the quality and benefits
    of regulations that have resulted from a process that
    incorporates more State input compared to the regulations that
    have recently been promulgated by the EPA?
        Mr. Pirner. Senator Rounds, based on my experience, if you
    go back and EPA rolled out an issue, and if everybody came to
    the table and agree this is a problem and agree this is some
    options that are viable, things get done, it works. If you
    don't have that process in place and the Federal Government,
    EPA in this case, is identifying the problem along with the
    option, or a couple options, none of which work for you, then
    we are left with the rash of lawsuits that I just mentioned in
    my testimony.
        Senator Rounds. Talk about ozone a little bit. In South
    Dakota we are in compliance. We are one of the few States that
    is in compliance. You have seen the new numbers coming out. Can
    you talk a little bit about what that does in terms of a State
    like South Dakota, where we are one of the 10 that actually
    complies with the guidelines right now? You mentioned they want
    to make a change in this, down to perhaps below our basic
    numbers. Can you talk about that a little bit, about how
    frustrating that is?
        Mr. Pirner. Yes, Senator. To form ozone you have to have
    certain emissions, and it has to react with sunlight and then
    you get ozone. So ozone may actually form in a downwind State.
    In South Dakota, we are a population of, what, about 800,000
    people. We don't have the sources of the chemicals that react
    with the sunlight to form the ozone.
        So the ozone that we do have in South Dakota is either from
    upwind States or is basically our background levels. And I
    think based upon what we have seen, the new limit that EPA has
    come out with is very, very close, if not above, our background
    levels.
        Senator Rounds. So what is a State like South Dakota
    supposed to do when we are not in compliance?
        Mr. Pirner. We haven't been there yet, thank goodness, but
    I would assume we would go into a non-attainment status. We
    would have to try to work with the EPA on figuring out what to
    do, but, since we don't have the sources, I don't know what we
    would do.
        Senator Rounds. In your experience, how would you recommend
    EPA change its practices of making regulations to better
    incorporate States' perspectives in the regulatory process? In
    other words, what are the implications of the EPA enacting
    broad, overreaching national mandates rather than regulations
    that take into account the differing characteristics of
    individual States?
        Mr. Pirner. Senator, your hearing today is on cooperative
    federalism, and if you read that Executive Order that I quoted
    in my testimony, it says in there that one of the principles of
    federalism is that those decisions that affect people that are
    made by the unit of government closest to the people are
    usually the best decisions, and we would say that is still
    true.
        Senator Rounds. I would suggest that during your tenure,
    from 1979 on, you have gone through multiple administrations.
    Can you share with us a little bit about what you are seeing
    right now with regards to either the consultations that are
    either not there or the directives that are being laid out
    right now versus the way it used to work? Whether it was in a
    Democrat administration or a Republican administration, what is
    different about what is going on right now?
        Mr. Pirner. Senator Boxer said we are not going to repeal
    the Clean Air Act and we are not going to repeal the Safe
    Drinking Water Act, and we are not going to repeal these
    environmental Federal acts; and I don't think anybody wants to
    repeal those Federal acts. When those acts were put in place,
    there were real problems in this Country; the environment was
    really, really suffering, and that was the reason those acts
    were put in place.
        But in the intervening time period now tremendous progress
    has been made; our water is cleaner, our drinking water is
    safer, our air is cleaner. So I guess what bothers me some
    about this is now we are trying to ratchet down to the next
    environmental problem and we are getting to such low levels
    that we are going to spend a lot of time, we are going to spend
    a lot of money, we are going to spend a lot of resources, and
    in the end what is going to be the benefit?
        Senator Rounds. Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Rounds.
        I mentioned in my opening statement that all these acts,
    the Clean Air Act, we on the Republican side were very
    supportive of that. In fact, I was one of the initial co-
    sponsors of those. So I wouldn't want people to think that
    these things are not working. They are working. We understand
    that.
        Senator Carper.
        Senator Carper. Thanks so much.
        Again, thanks to all of you.
        I am going to put my old hat on as a recovering Governor
    just to followup on what Ali said. During the time that Ali was
    serving in the Department of Natural Resources, Christof Tulou,
    sitting behind me, was the secretary and I was Governor for 8
    years, also chairman of the National Governors Association for
    a while. I get the idea that States are laboratories of
    democracy. I like the idea that the Federal Government would
    set some standards and say to the States, you figure out how to
    do it, figure out the most cost-effective way to meet those
    standards. I thought the six points that you outlined in your
    testimony, Ali, I am almost tempted to go over them again and
    ask everybody on this panel if you agree with those.
        Before I do that, just be thinking about that. I am
    telegraphing a pitch. That is what I am going to ask next. So
    just be thinking what he said and how you feel about that.
        The Chairman and I go to a Bible study that meets most
    Thursdays. He has been to a prayer breakfast this morning. We
    are people of different faiths here, but we actually do try to
    figure what our faith is and abide by it. We are all people
    with different faiths. But one of the things I think all of us
    agree on, I don't care what religion we are, is treat other
    people the way we want to be treated. I think that is a
    standard that we can all embrace. I don't care what religion
    you are; it is there in your religion. I think it applies here.
        I could have shut down the State of Delaware's economy when
    I was Governor, literally shut it down, and we would still have
    been out of compliance in any number of air quality metrics.
    That is just not fair. That is not right. That is why we need
    others to be a good neighbor and to look out for their
    neighbor.
        There are some places in the Midwest where they create
    cheap energy, burn coal, 500-foot tall smokestacks. Put the
    stuff up in the air, it blows all the way over to the East
    Coast, we get it. We end up with dirtier air. We have to spend
    more money to clean up our air because other people are getting
    cheap electricity, and it is just not right. So I would just
    ask for all of us to keep in mind the Golden Rule: treat other
    people the way we want to be treated.
        The other thing I want us to keep in mind is I think it was
    something, Mr. Pirner, that you said. We have made great
    progress. When I was at Ohio State University, a Navy
    midshipman there, there was a river up in Cleveland that caught
    on fire, the Cuyahoga River. We all remember that.
        I got on the train this morning in Wilmington, Delaware,
    there was a river that goes right by the train station there in
    Wilmington, the Christina River. We can't eat the fish there.
    In fact, we can't eat the fish in most of the rivers in my
    State. Frankly, there are a whole lot of other rivers in a
    whole lot of other States where they can't eat their fish
    either. And while we are making progress, the Cuyahoga River
    doesn't catch on fire anymore, but we still can't eat our fish,
    and we can do better.
        We all agree that we ought to be guided by sound science.
    Part of sound science says that some of the real problems for
    air pollution is the size of the particulates that get into our
    lungs that are most dangerous are the smallest. We have only
    been concerned about the larger ones, but we find out, as we
    learn more through science, the really dangerous stuff is the
    really teeny weeny ones, micro jobs. So I would just ask us to
    keep that in mind.
        I want to go back to what Ali said. He made six points that
    I just want everybody to say whether or not you think he is on
    target.
        He said, I believe EPA can best fulfill its role by
    fulfilling the following: one, sound science. EPA must set
    national standards as Congress mandated which rely on sound
    science as a cornerstone of its work. That is No. 1.
        No. 2, flexibility. Once EPA establishes its standards,
    this agency should provide States with appropriate flexibility
    to meet their obligations under the Clean Air Act and protect
    public health and the environment. That is No. 2.
        No. 3, timely rules and guidance. It is important that EPA
    issue timely implementation rules and guidance for use by the
    States.
        No. 4, accountability. EPA should be consistent in the
    outcomes it expects from States across the States and hold
    itself and the States and local air pollution control agencies
    accountable for meeting their commitments.
        No. 5, equity. EPA must provide for a level playing field
    among the States, kind of the Golden Rule deal that I just was
    laying out.
        And, finally, nationwide sources. EPA must address sources
    that States are either preempted from regulating or lack the
    necessary expertise to regulate, or that are most effectively
    regulated on a national level.
        Let me just start with you, Ms. Markowitz. Do you agree
    with those? Has he laid it out pretty well or not?
        Ms. Markowitz. Yes, I agree with that. It makes tremendous
    sense. I think that is how we have been operating. We
    personally, in Vermont, have experienced tremendous flexibility
    in our relationship with Region 1.
        Senator Carper. Thank you.
        Mr. Huffman.
        Mr. Huffman. Yes, Senator, those are great principles. We
    agree with them and we long for those days when the execution
    follows that ideal.
        Senator Carper. All right.
        Ms. Keogh. Think of this as a menu.
        Ms. Keogh. I agree with Cabinet Secretary Huffman as well,
    and the other members. These are good principles. It comes down
    to the implementation and how we can work cooperatively, and
    find solutions rather than create new challenges.
        Senator Carper. Thank you.
        Mr. Pirner.
        Mr. Pirner. Yes, Senator, I would agree with those six
    points as well and, as the other witnesses have said,
    basically, it is how you carry it out.
        Senator Carper. All right, good.
        Mr. Chairman, I would say the ayes have it. Thank you all
    very much.
        Senator Inhofe. Well, thank you.
        Senator Capito.
        Senator Capito. Thank you, Mr. Chairman.
        I want to thank all of you. And I neglected to mention,
    when I talked about Secretary Huffman, that he also is a
    colonel and serves as the Vice Wing Commander of the 130th
    Airlift. So thank you for your service there, Colonel Huffman.
        I am glad that Senator Carper went to the principles that
    you laid out because I was going to use that in terms of my
    questioning.
        Secretary Huffman, you highlighted Section 303 of the Clean
    Water Act in your testimony, and basically it says that the EPA
    is asked to determine whether a change in the State's water
    quality standard meets the requirements of the Clean Water Act.
    And if the EPA determines that a water quality standard isn't
    consistent, by law, the EPA has to notify within 90 days.
        My understanding is that the West Virginia legislature
    approved a change in the State's water quality standard just
    last year, but the EPA failed to either approve or deny the
    change within 90 days. I think the substance of the talk we are
    talking about today is not so much the standards; as you
    mentioned, it is the implementation, it is the lawfulness with
    which the Federal agency is moving forward.
        So, in my view, with them not notifying in the timely
    fashion or giving you good direction, it violates the timely
    rules and guidance that the director in Delaware was talking
    about, and also the accountability portion of that.
        How vital is that feedback for EPA, that it come in a
    timely fashion to you so that you can fully implement?
        Mr. Huffman. Well, thank you, Senator. Good to see you
    again. It is critical because there are a lot of moving parts
    in the environmental regulatory business. There is a lot going
    on. We need to make these requests and we need to get answers,
    and we need to move on. What is really frustrating is I can
    submit a change for a water quality standard, and not get it,
    and wrangle for months and sometimes years, but, yet, whenever
    I get an opportunity to comment on proposed rules, I might have
    3 days, I might have 4 days. And that is very frustrating and
    it makes me wonder, if I were a conspiracy theorist, I might
    wonder what their agenda is, what is going on here. So it is
    frustrating.
        Senator Capito. Let me ask you, too, the difference between
    guidance and rules and regulations. You brought that up in your
    testimony. We find that, really, throughout the Administration
    in terms of offering guidance instead of rulemaking because it
    does evade the legal aspects of creating a regulation. Are you
    getting more guidance than you have in the past? Is it more
    difficult? Is there enforcement mechanisms to guidance?
        Mr. Huffman. Well, when you govern by guidance, instead of
    going through the protocols that the Congress has set up in our
    environmental statute, it allows you to get by with more; it
    allows you to avoid the transparency and how you get to your
    point; and we are seeing a lot of that not only with EPA, but,
    as I mentioned, with the Office of Surface Mining.
        Senator Capito. I think most of you have mentioned that
    what you need is the Federal minimum standard nobody has a
    problem with; it is the implementation aspect of it. But, also,
    most of you have mentioned the flexibility that the States need
    to have. Obviously, in West Virginia, we have a much different
    situation than you have in Vermont. We are blessed with a lot
    of coal and we use it and have used it, and we are cleaning it
    up every day, but it is a bigger challenge for us in certain.
    So we need that flexibility in West Virginia to meet those
    standards because, as every member would say, clean air, clean
    water is just as valuable to us. And I think we can eat a lot
    of the fish that we catch in West Virginia, so we are very
    happy about that.
        Is the flexibility aspect probably the most difficult
    hurdle for you all to overcome? I will start with you,
    Secretary Huffman.
        Mr. Huffman. I don't know if it is the flexibility or the
    frustration. I know we are running out of time here. The
    frustration really seems to be it is an inconvenience to
    involve the public, to involve the States. It takes time. If
    you want to make a rule, it takes time. And, as you all know,
    that is a very cumbersome process.
        The convenient way to do that would be, by fiat, to impose
    it upon the States. That is what we are seeing. There is little
    to no flexibility because it is already written. By the time we
    get it, it is already written and the minds are made up, and it
    is very difficult to overcome that.
        Senator Capito. And I would just finally note that you
    participated or agreed to participate with OSM to develop the
    new stream buffer rule. Many States were involved with this.
    And because of the numerous frustrations and really the lack of
    listening that OSM was doing, most of the States pulled out of
    that, I think. Is that correct?
        Mr. Huffman. That is correct. There was a draft of that
    rule that OSM mistakenly made public before, within days of us
    signing on as a cooperating agency, it was already written.
        Senator Capito. It was already written. Thank you.
        Senator Inhofe. Thank you, Senator Capito.
        Senator Whitehouse.
        Senator Whitehouse. Thank you very much, Chairman. Let me
    associate myself with the remarks of Governor and now Senator
    Carper. As the attorney general of my State, Rhode Island, I
    saw exactly the circumstance that he very well described. Not
    only did the upwind States not make any effort to treat us
    fairly, we often had to try to sue the upwind States with EPA,
    or sometimes even sue EPA to enforce compliance with the Clean
    Air Act.
        On a perfect Rhode Island summer morning, you could drive
    to work and hear on the radio a warning that today was a bad
    air day, and the children and the elderly and people with
    breathing difficulties should stay indoors. Stay indoors.
        And, like Delaware, we could have shut down every outlet of
    emissions in the State of Rhode Island and not gotten ourselves
    into compliance, because it came from other States; other
    States that fought compliance; other States that often had not
    even put scrubbers on their smokestacks yet; other States that
    specifically built high smokestacks so it would project the
    emissions out of their State. They were very often States in
    compliance with these air regulations, even though they were
    the source of the emissions that were taking Rhode Island out
    of compliance.
        So I know there are going to be States that are going to
    unhappy with EPA regulation. They would love to have the
    regulation be as close to the people as possible because those
    people have wangled it so that they can export their pollution
    to my State, and not have to pay for it and not have to clean
    it up.
        And that is a real problem that I think EPA has to address.
    It is very important to our downwind States. It is just not
    fair for kids in Rhode Island not to play on a summer day
    because they are having a bad air day. And what we have seen is
    that EPA has cracked down more and more, sometimes because
    States have sued, sometimes because they have acted on their
    own, actually, our bad air days are diminishing.
        But it took EPA to get after the States that were happy to
    go along with the gag, because they had made their pollution
    somebody else's problem. That somebody else was my Rhode Island
    children, elderly, and people with breathing difficulties.
        So, for the record, our engagement with Region 1 of EPA is
    terrific in Rhode Island. We don't have complaints. We talk
    back and forth; it is very open; there is no problem. So I
    don't know if there is a significance to the fact that the
    States that seem to be more in the export business are the ones
    that have of the problem with EPA, and the ones that are more
    in the we are getting clobbered business are the ones that
    appreciate EPA, but certainly from Rhode island's perspective,
    we appreciate very much what EPA is doing.
        Let me ask a quick question just to kind of see where folks
    stand, and let me start with Mr. Pirner.
        Mr. Pirner, do carbon emissions from fossil fuel burning
    cause changes in our atmosphere and oceans that portend harm to
    people and to ecosystems?
        Mr. Pirner. Senator, I am not going to enter into that
    particular debate. What I would argue is that if we are going
    to control carbon emissions, it has to be done in a way that
    can work and that is feasible, and the first proposal that EPA
    laid out in our State simply was not feasible at all.
        Senator Whitehouse. Why are you unwilling to answer a
    question at a hearing that is as simple as, do carbon emissions
    from fossil fuel burning cause changes in our atmosphere and
    oceans that portend harm to human beings? Why are you not
    willing to enter into what you call a debate?
        Mr. Pirner. Senator, because I am not an expert in that
    particular topic.
        Senator Whitehouse. Ms. Keogh, do carbon emissions from
    fossil fuel burning cause changes to our atmosphere and oceans
    that portend harm to humans and to ecosystems?
        Ms. Keogh. I think you can find scientists that say both,
    yes and no.
        Senator Whitehouse. And what do you say?
        Ms. Keogh. Well, I am not an expert, either, as the other
    witness indicated.
        Senator Whitehouse. Mr. Huffman, do carbon emissions from
    fossil fuel burning cause changes to our atmosphere and oceans
    that portend harm to humans and to ecosystems?
        Mr. Huffman. I am sorry, I didn't mean to interrupt you,
    Senator. I do believe that the science would indicate that our
    climate is changing. I think that there is a lot of,
    unfortunately, we are having the debate in the wrong place in
    this Country over climate change. We are name-calling. It is
    reduced to name-calling over whether you believe or don't
    believe in climate change. Sure, the climate is changing. What
    we need to be debating is what we should be doing about it. And
    I don't know that we have come together as a Nation on that.
        Senator Whitehouse. Well, clear enough for me.
        Let me just say for the record, as I close out, that I
    think every national lab, our U.S. military, NOAA and NASA, and
    every single one of our lead home State universities would have
    found that an easy question to answer with a plain and simple
    yes. Thanks.
        Senator Inhofe. Senator Boozman.
        Senator Boozman. Thank you, Mr. Chairman.
        Ms. Keogh, in your testimony you cite a dramatic decrease
    in time and tolerance or State implementation plans and
    dramatic increase in EPA Federal implementation plans under the
    Administration. As depicted in this chart, the Obama EPA has
    taken over State programs 54 times, more than the three
    previous administrations combined times 10.
        Director Keogh, are you concerned about this trend? Isn't
    it true that State plans are integral to the Clean Air Act's
    cooperative federalism structure and Federal plans were
    intended as only as a last resort?
        Ms. Keogh. Thank you, Senator. We are concerned about this
    trend, and we understand as a State that Federal plans may be
    necessary sometimes, in circumstances where States do not act
    or choose not to act. But the frequency and process of the FIPs
    have become so alarming, mainly because they take a Federal
    solution that may be developed in a very short period of time
    with limited information and replace a very thoughtful and
    extensive process at a State level, where we have dealt with
    what could be a reasonable solution, we vett it through
    transparent processes and also search out whether we have
    unintended consequences. So that is our biggest concern, is
    that we replace our well thought out judgment with somebody
    else's solution that may not have seen that same thoughtful
    process.
        Senator Boozman. Very good. As you know, under the Regional
    Haze program, States develop implementation plans. EPA has
    limited authority to reject the State plan and issue a Federal
    plan instead. Still yet, in Arkansas, EPA rejected our State
    plan and proposed an extremely expensive Federal takeover.
    Director Keogh, is it true our State plan was on track to
    achieve natural visibility conditions?
        Ms. Keogh. Yes, sir.
        Senator Boozman. And its proposed Federal Regional Haze
    Plan for Arkansas, did EPA go beyond its limited procedural
    role prescribed by the Clean Air Act?
        Ms. Keogh. In Arkansas, we do believe so. In fact, when I
    asked EPA, when they offered up the Federal proposal, why they
    expanded the scope of the Regional Haze Plan to include sources
    that were not legally authorized under the rule, EPA answered,
    because we can.
        Senator Boozman. How will the requirements of the Federal
    Regional Haze Plan interact with possible actions under the
    Clean Power Plan? Are those timelines intertwined in a
    complicated way?
        Ms. Keogh. They are for Arkansas, at least. Our State air
    experts that evaluated both rules and have been working
    diligently to assess impacts and solutions looked at models,
    and I think it is important to show that the model under the
    Regional Haze Plan, where they take into account cost-
    effectiveness, assumes a source could install multi-million
    dollar control equipment and do it cost-effectively.
        However, when you look at the models and the timelines of
    the Clean Power Plan, that same source no longer operates just
    a few years later, after those controls are installed, and that
    would be a very extremely costly mistake for Arkansans to pay
    for, to install multi-million dollar controls, only to have the
    source shut down to comply with the subsequent rule compliance
    date.
        Senator Boozman. Thank you.
        Mr. Ali mentioned about the unfunded mandates. I think that
    is something that I think we can all agree on is a real
    problem. Some of these things we are having trouble on
    agreement, but the unfunded mandates really is a problem.
        Randy, can you address that a little bit?
        Mr. Huffman. Well, it has really always been an issue. The
    funding for the vast majority, and I don't know the number, of
    our environmental regulatory programs in the States is provided
    by the States, either through the General Fund budgets or, in
    our case there is a lot of special revenue type accounts,
    through assessments and fees on the industries that we
    regulate. I don't know that I have ever seen any kind of an
    analysis by EPA when a new rule is imposed or a new guidance.
    There is never an analysis done, that I have seen, that would
    indicate what the costs are that are associated with.
        Senator Boozman. Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Boozman.
        Senator Markey.
        Senator Markey. Thank you, Mr. Chairman, very much.
        Ali, thank you for being here. Some of your fellow
    regulators have expressed concern about not being able to
    comment on EPA rules. The Clean Power Plan changed
    significantly from its draft to final form based on input from
    the States, industry, and other stakeholders. Do you find that
    the EPA is listening to you in terms of the flexibility, the
    concerns which you have been expressing?
        Mr. Mirzakhalili. I absolutely do, especially in terms of
    the Clean Power Plan. I think that the level of outreach and
    dialog with stakeholder involvement was unprecedented in that
    effort. We see marked difference between what they proposed and
    what was finalized, and we see our comments reflected in those
    changes.
        Senator Markey. Earlier in the hearing there was a
    discussion of the number of deadlines approaching for the Clean
    Air Act. The Massachusetts Department of Environmental
    Protection has corresponded with Chairman Inhofe for this
    hearing and he noted that Massachusetts will meet these
    deadlines. Will Delaware be able to meet those deadlines as
    well?
        Mr. Mirzakhalili. We absolutely will be.
        Senator Markey. Will Vermont be able to meet these
    deadlines?
        Ms. Markowitz. We absolutely will be. I want to acknowledge
    that under the Clean Power Plan we don't have regulated
    entities, so we don't have an obligation there.
        In answer to your earlier question, though, there was an
    unprecedented involvement even of Vermont in the development of
    those rules because we are deeply concerned that whatever the
    implementation is, that it could include the Regional
    Greenhouse Gas Initiative that we are part of.
        Senator Markey. So let me followup with you, Secretary
    Markowitz. The Safe Drinking Water Act allows States to manage
    public water systems within their jurisdiction if they meet
    national standards set by the EPA. Given the ongoing situation
    in Flint, Michigan, it is clear that we still have a long way
    to go to ensure safe drinking water for every American. What
    are the ways that we can enhance Federal-State cooperation to
    ensure safe drinking water for all in our Country?
        Ms. Markowitz. Well, this is an area where we are having
    direct experience right now. We have an issue with a chemical,
    PFOA, which was not a regulated chemical which is nevertheless
    a carcinogen and an endocrine disrupter that has been found in
    wells in Bennington; it is a chemical that is used in the
    making of Teflon. And we really rely on EPA and their
    scientific expertise to help us manage that.
        In addition, they have come out with some new rules and
    standards for the limits in copper and some other things that
    we can find in our drinking water. This is an area of
    partnership that is really important. The standards that they
    set help us ensure that our Vermonters are healthy when they
    are taking water from their taps.
        Senator Markey. OK.
        Ali, let me come back to you. As we are all aware, climate
    change is a global problem, but it requires local solutions in
    order to solve the problem, and Pope Francis, who taught high
    school chemistry, came to Congress to preach his sermon on the
    Hill to us to tell us that the planet was warming and the
    science proved that, and that human beings were contributing to
    it and the science proved that, and that we had a moral
    responsibility to be the leaders for the planet.
        So my question is since both Delaware and Vermont are part
    of the Regional Greenhouse Gas Initiative, which has been
    partnering now coming up to eight or 10 years to reduce
    greenhouse gases, can you talk about how the EPA has been
    coordinating with you to ensure that this problem, this global
    warming problem can be solved by cooperation amongst the States
    and working with the States?
        Mr. Mirzakhalili. Thank you for the question, Senator. And
    they have been. One of the key comments we made after the
    proposal was for EPA's final rule to accommodate and use the
    framework that we already set on the RGGI, and it is certainly
    being accommodated. We think our RGGI solution is a very good
    solution that can be actually expandable nationwide, and the
    rule accommodates, actually.
        Senator Markey. Thank you. And I appreciate the interState
    aspect of this as well, much less the international aspect of
    it, there is no question about it, but there has to be
    cooperation. Silvio Conte, Congressman from Western
    Massachusetts, and I introduced the first acid rain bill in
    1981. It took until 1990 to pass the bill, but 1981. And that
    was just because people in Ohio were putting these smokestacks
    football field high into the air and blowing the smoke right
    toward us, so we were the ones principally affected, Vermont
    and all the New England States.
        So it is clear that unless we work together we can't solve
    problems of that magnitude, so we thank all of you for your
    work in trying to accomplish that.
        Thank you, Mr. Chairman.
        Senator Inhofe. Thank you.
        Senator Fischer.
        Senator Fischer. Thank you, Mr. Chairman and thank you,
    Senator Boxer, for holding this hearing today, and thanks to
    all the witnesses for coming.
        The Nebraska Department of Environmental Quality shares in
    the concerns that have been expressed by many of the witnesses
    today. In the letter addressed to the Committee, our State has
    written that ``While Nebraska has a good working relationship
    with EPA Region 7, recent EPA headquarters regulatory actions
    have snowballed. EPA's compulsive tinkering with standards and
    limits, often before States have had a reasonable chance to
    comply, make it difficult to reconcile those often competing
    priorities.''
        Secretary Pirner, in your response letter that was sent to
    the Committee, you State that nearly all new Federal
    requirements will have an impact on your State, its citizens,
    and its economy, but will ``produce little or no benefits in
    protecting public health and the environment.'' Like my home
    State of Nebraska, South Dakota is a rural State that hosts
    many unique and critical natural resources that benefit
    citizens and communities.
        Can you please elaborate on the challenges many rural
    communities will face as a result of expansive EPA regulations?
    And what are the economic impacts in terms of job growth and
    industry investment from the EPA rules?
        Mr. Pirner. Senator, part of my concern is that on the
    water quality and effluent standards that I talked about in my
    testimony, it is not that we are against having minimum
    standards; but now we are ratcheting those standards down to
    such a degree as to be almost infeasible in some cases.
        I will just talk about the ammonia standard. We were one of
    the first States to include ammonia as a water quality
    standard. Ammonia can be toxic to fish. So we agreed with that
    and we agreed that all of our large cities pretty much have
    what is called tertiary treatment that treat for ammonia, and
    have for many years now. But if we ratchet that level down, now
    we are going to have install even more treatment.
        Basically, the new standard is based not on fish anymore,
    it is based on mussels. So I am going, well, then how did the
    mussels do it when we didn't treat for any ammonia? And, again,
    I am not a biologist and I don't understand all that, but all I
    do understand is that the levels are getting down to such a
    point as to be cost-prohibitive, and that concerns me because
    if we do try to comply with those new standards, we are going
    to be spending a lot of time and a lot of money that could be
    spent in other areas.
        Senator Fischer. Right. The Nebraska Department of
    Environmental Quality, they discussed the need for streamlining
    those Federal requirements. We are always worried about that
    unnecessary duplication. So, Mr. Pirner, do you agree with that
    statement? In your experience, do you see duplication as a
    reoccurring theme among State regulators as they try to
    interpret and then try to implement all these Federal mandates?
        Mr. Pirner. Senator, I am not exactly sure I understand the
    question. You mean duplication between the State and EPA?
        Senator Fischer. In many cases, yes, but also between
    Federal agencies. So it is not just EPA that comes down with
    standards, but you have other agencies as well.
        Mr. Pirner. Well, we certainly have other Federal issues
    with the Corps of Engineers, with Bureau of Land Management,
    with Forest Service. So there are many other Federal agencies
    that we believe are infringing on States' rights besides EPA,
    if that is the answer.
        Senator Fischer. How much time does that add when you are
    trying to meet regulations, when you have different agencies
    out there that I would say they are piling on a number of the
    regulations that we look at?
        Mr. Pirner. Senator, it is certainly of concern. I will
    give you an example. In our Department, we are a relatively
    small Department. Our clean air program I think has 14 FTE in
    it for the whole State. When the Clean Power Plan came out, we
    took two of those people and they worked when it first came out
    and we were trying to do comments and trying to figure out what
    was going on.
        Then, when the final rule came out, we had to go through
    that process all over again. Basically, we process, I am going
    to say, somewhere around 80 air quality permits per month that
    are renewals and new and so on. I had to take 2 out of the 14
    FTE out of that process to devote to just the clean air plan.
        Senator Fischer. Right. In your testimony you talk about
    the EPA's rule to regulate coal ash, and you note that the new
    rule will preempt the existing solid waste permit that is
    currently administered in your State. It is my understanding
    the EPA is encouraging States to amend their State solid waste
    management plans. Are you concerned about the timing for that?
        Mr. Pirner. Yes, Senator, very much so. Again, we believe
    our existing solid waste permit was adequately protecting the
    environment. Now there is a host of new requirements that
    somehow we have to merge in with that existing permit, and we
    have to try to figure out how to do that in the least
    disruptive manner to both the agency and the industry.
        Senator Fischer. Are you limited in your flexibility?
        Mr. Pirner. All I can say at this point is our negotiations
    with Region 8 are ongoing.
        Senator Fischer. Thank you.
        Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Fischer.
        Senator Gillibrand.
        Senator Gillibrand. Thank you, Mr. Chairman.
        Ms. Markowitz, as you know, New York and Vermont share Lake
    Champlain, and both are part of the Lake Champlain basin
    program. Working with EPA to improve the water quality of Lake
    Champlain is very important to both our States. It is my
    understanding that the EPA and the State of Vermont have been
    working together to establish a new total maximum daily load
    for Lake Champlain. Could you elaborate on how the EPA has
    worked collaboratively with your agency to negotiate this
    agreement?
        Ms. Markowitz. Thank you. This is actually a perfect
    example of an issue that could have been seen as an overreach
    but, instead, really has ended up with a path forward that
    offers us flexibility and an innovative approach to cleaning up
    our waters. Lake Champlain suffers from terrible algae blooms
    from phosphorus pollution. Unlike in the 1970's and 1980's, it
    is not because of what is coming out of the wastewater
    treatment facilities as it is coming off the landscape. So
    rather than being point-source, it is non-point-source
    pollution, precipitation-driven pollution.
        So as we were working on a new TMDL for Lake Champlain, we
    have been working on it actually for 4 years, they could have
    just done it on their own, but they engaged us because they
    understood that if we were going to clean up the Lake, we
    really had to be involved because we understood what it would
    take to engage municipalities and farmers and business owners
    and developers and our transportation department in managing
    stormwater-driven pollution.
        It has been tremendously successful. We are waiting for the
    final TMDL to come out. We already have a plan, though, to
    implement that has been passed by our legislature, including
    some funding, and I am happy to share it in more detail to any
    of you because I think it is really the gold standard for this
    cooperative Federalist approach.
        Senator Gillibrand. Thank you. In your written testimony
    you wrote that ``pollution does not honor State lines,'' which
    is why you see the value of having national standards.
        Mr. Mirzakhalili, you describe that our most important
    responsibility under the Clean Air Act is to protect the health
    and welfare of citizens throughout the Country from the harmful
    effects of air pollution. Could you discuss some examples how
    pollution in one State affects the health and citizens in
    another?
        And from your perspectives as State environmental
    regulators, is the health of the citizens in Vermont, Delaware,
    New York, or any State better protected by having national
    standards that limit the amount of pollution that can be
    emitted into the air we breathe? And, last, do you agree that
    the EPA has not overstepped its authority in setting national
    standards using the Clean Air Act, the Clean Water Act, and
    other Federal environmental laws that States then implement and
    which are based on what the science shows to be necessary to
    protect public health and the environment?
        Mr. Mirzakhalili. Certainly. Thank you for the question,
    Senator. Delaware, Vermont, the Northeast is perfect examples
    of States that are suffering from air pollution transport, and
    that is EPA has come up with a transport rule recently to
    allocate responsibility and establish how much State
    contributes to the other. We happen to think that they haven't
    gone far enough. We think EPA needs to do more. Some of the
    transport good neighbor steps were due to us about 5 years ago,
    so I think that some of the deadlines that you see here are the
    result of things not getting done when they were supposed to
    get done.
        So I absolutely think EPA should do more in this area, and
    I think we stand to benefit from that. We can't meet air
    quality standards; right now, in practice, 90 percent of our
    air quality, air resources have been allocated to upwind
    States. I can't come into compliance without help.
        Senator Gillibrand. Do you want to add to that?
        Ms. Markowitz. Well, that is our experience as well. We are
    barely in compliance in a number of parts of Vermont and, of
    course, we have no contributing industries, so, again, it is
    all upwind States. We have tried to negotiate; we have tried to
    sue. EPA has had rules on the books, and we are very pleased
    that they have come out with compliance deadlines, because that
    will make a difference to the health of the people of the State
    of Vermont.
        Senator Gillibrand. Thank you.
        Thank you.
        Senator Inhofe. Thank you, Senator Gillibrand.
        Senator Sullivan.
        Senator Sullivan. Thank you, Mr. Chairman.
        I want to thank the panelists for their testimony on a very
    important topic.
        I think it is very clear on this Committee we are all very
    committed to clean water, clean air. There has been a lot of
    focus on the Flint issue. Certainly nobody wants to have our
    drinking water have poison in it, so the issue of clean water
    is certainly going to come up because of that. I am really
    interested in having to work with my committee members.
        In my State, we have entire communities, entire communities
    in Alaska that don't have running water, that don't have flush
    toilets. Thousands of Alaskans, Americans, which I think is
    outrageous, and I certainly want to work with this Committee on
    not only addressing Flint, but other places that don't have any
    of the benefits that most Americans just assume they have. We
    don't have that in my State in a lot of communities, and it is
    something we need to fix, not just in other places in the
    Country.
        But, Ms. Keogh, I want to followup. Your statement I think
    really sums up a lot of the frustrations that so many of us
    have, where you just stated where the EPA stated because we
    can. Can you elaborate on that a little bit more, what you just
    mentioned? I find that remarkably arrogant. I find that an
    Agency that certainly dismisses the rule of law. I think there
    is example after example after example, and it is not just
    members from this Committee.
        I am always surprised why this Committee, on a bipartisan
    basis, isn't more focused on making sure Federal agencies
    follow the law. Right now the EPA, in the last two Supreme
    Court terms, lost, the EPA v. Utility Air Regulators case in
    the Supreme Court lost; the EPA v. Michigan case has a stay on
    the WOTUS case where over 30 States have sued; and in an
    unprecedented, unprecedented action, the U.S. Supreme Court put
    a stay on the Clean Power Plan.
        So the EPA is losing every single major rule that they are
    undertaking in the courts, with Obama administration officials,
    other officials who are Federal judges, saying the EPA is
    overstepping its legal bounds.
        And you may have seen what Gina McCarthy said on TV on the
    eve of the EPA v. Michigan case. When asked if she thought they
    were going to win the case, she said yes. They didn't. But then
    she said, ``Even if we don't win the case, it was 3 years ago.
    Most of the States; companies are already in compliance.
    Investments have been made. We will catch up.'' So it was kind
    of like, hey, even if we lose, we win because everybody had to
    abide by the law. I think that is outrageous, and it is the
    source of frustration that so many Americans feel.
        Can you just elaborate on this ``because we can'' quote? I
    just find it the height of arrogance. Just for everybody's
    information, the EPA is supposed to abide by the law, and the
    Federal courts are showing in the last 3 years they don't.
    Because we can is not an appropriate answer on people who work
    for you.
        Ms. Keogh. Yes, Senator. Thank you. It is disheartening.
    We, as State regulators, find ourselves in that position every
    day as we effect regulation to make sure that we follow the law
    that is set forth.
        Senator Sullivan. Of course. That is what we are supposed
    to do, right?
        Ms. Keogh. We do not create the law; we implement law. So
    it is frustrating. Admittedly, I had very short notice that
    this Federal plan was coming at the time, so I felt like it was
    a genuinely honest question to understand so I could
    communicate effectively why requirements were re-adding to the
    State plan, and it was very disheartening, at a minimum, and
    very frustrating or perhaps a violation of trust to answer it
    with ``we can.''
        Senator Sullivan. So they didn't attempt to cite a law or a
    reg; they just said ``because we can.'' Sounds like a king to
    me.
        Ms. Keogh. The discussion went from a statement where
    Arkansas made that we are on a glide path with the Regional
    Haze Rule to actually advance and comply early, and that we
    were doing everything in our State plan that was required under
    the law. They went in and then, beyond that statement,
    discussed a provision about rate of progress and how they could
    require additional requirements under this phrase of rate of
    progress, and we questioned that, when we have a rate of
    progress that already exceeds or shortens the timeline and we
    actually achieve compliance early.
        So it became a bit of a circular conversation, to be honest
    with you that it was around there is a phrase in the law that
    says we can go beyond BART sources to seek a better rate of
    progress. And that was where they left it. And we did not end
    with a positive outcome at that, and obviously we continue to
    discuss that with EPA today.
        Senator Sullivan. Mr. Chairman, do I have time for one more
    question? I see that there is no other remaining members.
        Senator Inhofe. You don't have time, but go ahead.
        Senator Sullivan. I just want to followup just on the issue
    of consultation, where one of my frustrations, and I had been
    the attorney general of the State of Alaska and the
    commissioner of natural resources, but we often found that the
    consultation either didn't exist or was very cursory. And yet
    in every statute that we are talking about, the Clean Air Act,
    the Clean Water Act, every EPA-focused statute, the
    consultation requirement is not optional; it is mandatory.
        So I would just like any of the witnesses here to, if you
    have a sense on the consultation more as just a box check when
    you indeed get it, or do they try to actually listen and
    implement your concerns? Because one of the things that we have
    seen is a one-size-fits-all rule form Washington rarely works,
    whether it is Alaska or Vermont or Arkansas or South Dakota. So
    I am wondering about your experience with mandatory
    consultation, that is what it is in all the laws, it is
    mandatory. Do you feel that you are getting that enough?
        Maybe I will start with Mr. Pirner.
        Mr. Pirner. Senator, I think it is more of they check the
    box, in my opinion. A lot of these proposals that come out,
    there is a public comment period. We comment along with
    everybody else, but just in the example of the Clean Power Plan
    they received, what, 1.6 million comments or something. So if
    you are talking a State to Federal agency consultation process,
    I wouldn't consider submitting one set of comments, which we
    submitted under the Governor's signature, go as being a State
    to Federal agency consultation.
        Senator Sullivan. Anyone else on the consultation issue?
        Mr. Mirzakhalili. Senator, if I may. I co-chair a
    committee, National Association of Clean Air Agencies, and I
    can tell you that EPA is present on every call they attended.
    And that is not just with my committee; with other committees
    where the organization has a presence of EPA staff. They bring
    their thinkings to us, they share early drafts, they explain.
    So that may be a good place to plug in a conversation with EPA.
        Could they do better? In some instances, yes. We hear there
    is friction and tension between guidance and flexibility. You
    said you wanted the rules. I understand. You said you want to
    go to rulemaking. Rulemakings are rigid. The guidance gives you
    a little more flexibility. So we have to be careful what we ask
    for of EPA and make sure they can produce what it is that we
    want. So the rules set the minimum standards; guidance provides
    some technical assistance; and the rest of it is our
    responsibility to collaborate and cooperate and get done.
        Senator Sullivan. Thank you.
        Ms. Markowitz. I would add to that I am on the executive
    committee of the Environmental Council of the States, and EPA
    is at every meeting and comes on to monthly calls if we ask
    them to.
        So as described by Ali, they have made themselves
    remarkably available to us. In our region, as we are developing
    our performance partnership agreement, they also, in Region 1
    at least, are offering tremendous flexibility in terms of how
    we are going to be managing our obligation under our delegated
    programs.
        And, of course, they could always do better. One of the
    places, there is a difference between listening and agreeing,
    so I think they do a great job listening. They don't always
    agree. And that is, really, in part, some of the frustrations
    that you sometimes hear from my colleagues. They tend, in this
    Administration, we tend to agree with them more, so we are not
    dissatisfied with the level of attention that we are getting
    from them in this dialog.
        Senator Sullivan. Mr. Huffman, do you have any thoughts on
    that?
        Senator Inhofe. Senator Sullivan, we will have to chop it
    off here. You are 5 minutes over.
        Senator Sullivan. OK, Mr. Chairman. Thanks. There is no one
    else here, so I was just wondering.
        Senator Inhofe. OK. I mean, Senator Boxer wants to have the
    extra time that you have used, and that is fine.
        Senator Sullivan. I mean usually, most committees, if there
    is no one else here and we still have questions, it doesn't
    seem to be a big ask to continue to ask questions.
        I will submit questions for the record.
        Senator Inhofe. All right, that is fine. Thank you.
        Senator Boxer, take whatever time.
        Senator Boxer. That is very sweet of you.
        Senator Inhofe. Thank you.
        Senator Boxer. I just want to talk about the courts,
    because my colleague, Senator Sullivan raised the issue, so we
    looked it up. EPA has won 70 percent of the cases before the
    Supreme Court. As a matter of fact, on the 30 percent that they
    lost, sometimes they lost because they were not doing enough.
    And we can send you the memo on that, because I think that is
    important.
        I also think it is important to reiterate a fact clearly
    that should be in evidence. This is one Nation under God,
    indivisible, with liberty and justice for all. We know that. So
    to think that the Federal Government would not be an important
    partner to the States is wrong.
        Now, I know some of you say it is fine for them to be a
    partner, but I want to pick up on what Mr. Pirner said, because
    it is very clear. This has been a great panel, by the way. All
    of you have been so articulate and it has been very interesting
    here.
        But, Mr. Pirner, you said, look, in the 1970's we had
    terrible air pollution and it is understandable, it made sense
    to cut the pollution. And now you said things are so much
    better EPA is going too far. I mean, that is essentially what
    you said. And I have to give you some facts that I am going to
    put in the record, with the Chairman's agreement. And this is
    important.
        Eleven million Americans have COPD, chronic obstructive
    pulmonary disease. Eleven million. 22.6 million Americans have
    asthma, including 6.1 million children. And there are 1.68
    million estimated new cases of cancer in 2016. So to sit there
    and say that there is not work to do it seems to me strange.
    And you are in such an important position to help those people.
        Now, maybe some of them live in your State, some of them
    live in a neighboring State, and to say that you have a great
    relationship with a State and they will be fine is just not a
    fact in evidence.
        Ms. Keogh, you are here, you are giving testimony to this
    Committee, and it has to be truthful, and I know you were. So
    over the next week can you please send me the name of who told
    you, the name of the person who said we are ordering you to do
    this because we can? I want the name of that person because
    whoever said that was absolutely wrong, and I don't want people
    to just throw it out. Who did it? If you can put that in
    writing confidentially, I would greatly appreciate it, because
    I want to find out why they would say such a thing.
        I just think overall this panel has really proved the
    point.
        There is another fact on coal ash which you complained
    about, Mr. Pirner. Right now there are 331 hazardous coal ash
    ponds that could, if not improved, lead to a loss of life. So,
    you know, maybe you can sit there and say what you say, but
    when I swear to protect the people, I am going to do it; and
    this is the Environment Committee, this isn't the pollution
    committee.
        And Senator Inhofe and I have a different view of the role
    of the Federal Government. I think it is all very fair, but at
    the end of the day this is one Nation, so setting minimum
    standards, making sure our people are protected, whether they
    are in my State or a State adjacent where the pollution from my
    State may actually go to another State, I have an obligation,
    even if it is in my State.
        And, by the way, we have 40 million people and a lot of
    pollution, a lot of industry. We try our best. We do have
    forest fires; we have natural disasters. So we have an
    obligation, and my State doesn't complain about it, they just
    cleanup their act. And it is just a function of what is right,
    what is morally right. And you can measure the progress as you
    look at the health of the people.
        This is not some conversation about the meaning of the
    Twelfth Amendment, the Tenth Amendment, the First Amendment; it
    is really about the health of our people. We should do
    everything we can to protect their health, and as long as I am
    vertical that is what I am going to be working on.
        Thank you.
        Senator Inhofe. Well, thank you, Senator Boxer. Anything
    else?
        Senator Boxer. No.
        Senator Inhofe. All right.
        Let me just make a final comment here that it seems like
    every time we have a hearing it ends up to be a global warming
    hearing, or at least that is injected into it. Let me just
    share my personal thought that climate is always changing. I
    have said this on the Senate floor. I can't remember, I wasn't
    alive in 1895, but in 1895 we went through a period where they
    first started using another ice age. In 1918 was the first time
    they used global warming. And then, of course, that changed
    again in 1945 when that was another ice age they were talking
    about. And then, of course, that changed in 1975. So about
    every 30 years this happens, it has always been changing.
        The interesting thing is in 1945 that was the year they had
    the highest CO2 emissions in the history of this Country,
    recorded history, and that precipitated not a warming period,
    but a cooling period that sustained for another 30 years. So I
    just think that has to be said. I know that the public
    understands that now. I can remember back when I was the bad
    guy and we were talking about this back in 2000. At that time
    it was considered to be the No. 1 concern; not it is 15 out of
    15 according to Gallup's March poll. So people have caught on
    and they are going to enjoy continuing to bring that up.
        Last thing is we all want a clean environment, and when you
    mention the Clean Air Act and all these other acts, we were all
    for them, and I was back then. In fact, I was an initial
    sponsor of the Clean Air Act.
        So, with that, we will go ahead and adjourn. I would like
    to have one short quick word with Mr. Huffman and Ms.
    Markowitz, if I could. Thank you.
        [Whereupon, at 11:27 a.m. the committee was adjourned.]

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