    [Senate Hearing 114-393]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 114-393

                        OVERSIGHT OF U.S. ENVIRONMENTAL
                         PROTECTION AGENCY ENFORCEMENT
                            AND COMPLIANCE PROGRAMS

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

                                    HEARING

                                   BEFORE THE

     SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND REGULATORY OVERSIGHT

                                     OF THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JUNE 29, 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

                                  ____________

                           U.S. GOVERNMENT PUBLISHING OFFICE
    22-167 PDF                     WASHINGTON : 2016

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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                        ONE HUNDRED FOURTEENTH CONGRESS
                                 SECOND SESSION

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

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

                                  ----------

     Subcommittee on Superfund, Waste Management, and Regulatory Oversight

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

                                C O N T E N T S

                                  ----------
                                                                       Page

                                 JUNE 29, 2016
                               OPENING STATEMENTS

    Rounds, Hon. Mike., U.S. Senator from the State of South Dakota..     1
    Markey, Hon. Edward J., U.S. Senator from the State of
      Massachusetts..................................................     3

                                   WITNESSES

    Giles, Cynthia, Assistant Administrator, Office of Enforcement
      and Compliance Assurance, U.S. Environmental Protection Agency.     8
        Prepared statement...........................................    10
        Responses to additional questions from Senator Inhofe........    16
        Response to an additional question from Senator Rounds.......    38

       OVERSIGHT OF U.S. ENVIRONMENTAL PROTECTION AGENCY ENFORCEMENT AND
                              COMPLIANCE PROGRAMS

                                  ----------

                            WEDNESDAY, JUNE 29, 2016

                                    U.S. SENATE
             Committee on Environment and Public Works,
    Subcommittee on Superfund, Waste Management, and Regulatory
                                                      Oversight
                                                        Washington, DC.
        The committee met, pursuant to notice, at 2:30 p.m. in room
    406, Dirksen Senate Office Building, Hon. Mike Rounds (chairman
    of the subcommittee) presiding.
        Present: Senators Rounds, Markey, Crapo, Sullivan, and
    Inhofe.

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

        Senator Rounds. Good afternoon, everyone. The Environment
    and Public Works Subcommittee on Superfund, Waste Management,
    and Regulatory Oversight is meeting today to conduct a hearing
    entitled Oversight of U.S. Environmental Protection Agency
    Enforcement and Compliance Programs.
        Today we will hear testimony from Cynthia Giles, the
    Assistant Administrator of the Office of Enforcement and
    Compliance Assurance at the U.S. Environmental Protection
    Agency. We will be conducting oversight on the EPA's civil,
    criminal enforcement and compliance programs, and explore
    suggestions for improvement.
        Federal laws such as the Clean Air Act, Clean Water Act,
    and the Resource Conservation Recovery Act give the EPA the
    authority to issue penalties and pursue criminal and civil
    actions in order to enforcement requirements of environmental
    laws. The EPA Office of Enforcement and Compliance Assurance,
    OECA, administers EPA's environmental enforcement and
    compliance programs, and provides compliance assistance to the
    EPA's regional offices, States, businesses, local governments,
    and tribes.
        However, in recent years, rather than providing compliance
    assistance, the EPA has dictated compliance by engaging in
    heavy-handed environmental enforcement. We have heard multiple
    reports of the EPA inspecting facilities and leaving the
    company waiting years for the results, imposing huge fines on
    companies that self-reported and corrected simple
    administrative errors, and a lack of transparency regarding
    environmental violations.
        Rather than assisting with compliance, the EPA chooses to
    simply impose aggressive and, at times, unreasonable penalties
    using questionable enforcement methods. For example, in 2015,
    the EPA threatened Andy Johnson, a Wyoming farmer and father of
    four, with $16 million in fines, alleging that he had violated
    the Clean Water Act by constructing a stock pond on his
    property. It took the Johnson family over a year to settle a
    lawsuit with the EPA.
        In 2012, the EPA was criticized for using aerial
    surveillance over farms in Iowa and Nebraska to investigate
    Clean Water Act violations rather than speaking with landowners
    personally about the alleged violations. Most alarmingly, in
    2010, an EPA regional administrator was quoted as saying he
    wanted to crucify oil and gas companies like Roman conquerors,
    with the goal of making them easy to manage for the next few
    years.
        Tactics and statements like this by EPA officials, who are
    supposed to be working collaboratively with stakeholders, are
    worrisome and lead to serious questions regarding the integrity
    of the EPA enforcement process. Further, the EPA has expanded
    their use of Section 114 information requests under the Clean
    Air Act.
        Section 114 letters allow the EPA to collect information
    from covered entities to use in developing our regulation or as
    part of an investigation for an enforcement action. The EPA has
    increasingly issued Section 114 letters to companies who are
    not the target of an enforcement action, but merely may have
    information relevant to a separate investigation of which they
    are not a part.
        These information requests are extremely burdensome, can
    cost companies hundreds of thousands of dollars, and, despite
    the fact that the company receiving the request is not involved
    in the enforcement action, they can still be subject to
    criminal and civil penalties if they do not accurately comply
    with these requests in a timely fashion.
        Additionally, the EPA has begun the implementation of their
    Next Generation Compliance Initiative, which, among other
    things, would outsource EPA enforcement responsibilities to
    third-party auditors who would take the place of actual EPA
    personnel in enforcing environmental laws.
        We all want clean air and clean water. Compliance with
    environmental law is a requirement and there should be
    repercussions for breaking those laws. However, when an agency
    unfairly targets certain sectors of the economy or imposes
    large fines on small companies who take the time to voluntarily
    self-report, or whose only recourse is to pay the fine because
    they do not have the resources to engage in a time-consuming
    lawsuit, it runs contrary to the true intent of the EPA's
    enforcement program.
        The EPA should strive to be a resource that assists with
    environmental compliance rather than an agency that simply uses
    fines and scare tactics to dictate compliance. When the EPA
    works in a transparent, cooperative fashion with regulated
    communities, taxpayer dollars will be better managed,
    environmental laws will be more effective, and our environment
    will be cleaner for it.
        I would like to thank our witness for being with us today,
    and I look forward to hearing your testimony.
        Now I would also like to recognize my friend, Senator
    Markey, for a 5-minute opening statement.
        But let me just say this before Senator Markey steps in. I
    have appreciated Senator Markey's work on the Committee and I
    have appreciated the fact that Republicans and Democrats
    sometimes have differing points of view on different issues.
    But I think the one thing that we both agreed on is that we
    want an efficient and effective delivery of services, and we
    want a sense of accountability from the agencies that we are
    here to provide oversight to. So I just want to say that I have
    appreciated Senator Markey's interest in this and your
    willingness to work with us in going through this series of
    oversight committee hearings.
        Senator Markey.

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

        Senator Markey. Thank you, Mr. Chairman, very much. You and
    I, last week, were at the White House sitting there while
    President Obama signed a bill which had equal numbers of
    Democrats and Republicans working together, the toxic chemical
    update of a law that is a 1975 law. Last night on the Senate
    floor we passed out the brownfields law; both of them coming
    out of this Committee, both of them bipartisan, working
    together to try to ensure that we have commonsense laws that
    are on the books. And I want to thank you, as a result, for
    scheduling today's hearing.
        I would also like to extend my appreciation to Cynthia
    Giles for testifying here today. The Commonwealth of
    Massachusetts benefited from your expertise leading the water
    protection program at the Massachusetts Department of
    Environmental Protection. We thank you for that work. You have
    a similar job now to make sure that these laws are enforced,
    and the EPA is charged with implementing and enforcing the
    environmental laws to protect the air we breathe, the water we
    drink, the use for recreation and the land we use to grow our
    food.
        To ensure its mission is fulfilled, the EPA must have an
    enforcement arm with effective tools to enhance compliance with
    the law. It must be empowered to deter violations that can
    endanger health and the environment.
        The Agency's commitment to environmental protection can be
    seen on the front page of yesterday's New York Times, when
    Volkswagen agreed to pay up to $14.7 billion to settle
    allegations of cheating on air emissions tests and deceiving
    customers. This is an excellent example of the EPA acting as a
    tough cop on the environmental beat, working with State
    governments to enforce the law and protect public health.
        EPA enforcement actions have led to increased corporate
    compliance and environmental cleanup and mitigation of
    projects. EPA actions for non-compliance with environmental law
    have led to nearly $2 billion from corporate owners to clean up
    Superfund sites, $7 billion in investments by companies to
    control pollution and cleanup contaminated sites, $4 billion in
    court-ordered environmental projects resulting from criminal
    prosecutions.
        Unfortunately, the EPA's ability to continue the pace of
    its compliance activities is strained by diminished resources.
    The EPA's enforcement budget has declined by nearly 9 percent
    from 2010 to 2016, and its enforcement and compliance force has
    decreased by 17 percent during that same time period. Investing
    in EPA enforcement activities and providing the Agency with
    necessary funding is critical to its success.
        We must also bring EPA's compliance enforcement activities
    into the 21st century. The EPA's Next Generation Compliance
    Initiative supports the advancement of more effective and
    efficient ways of controlling pollution by embracing advanced
    monitoring technology, electronic reporting, and increased
    transparency. Using an advanced monitoring system like infrared
    video cameras to actually see dangerous emissions, reducing the
    paper burden on both industry and the Agency, and increased
    public awareness of enforcement activities are all benefits of
    this new 21st century approach.
        Whether it is Love Canal, VW, Flint, Michigan, or Woburn,
    Massachusetts, where, in 1979, a woman, Ann Anderson, brought
    her young son, Jimmy, into my office and asked me if I would
    help her. She had done an epidemiological study of her own
    neighborhood and found that not only Jimmy, but other children
    in the neighborhood, had leukemia, had cancers. She had done
    the work and she had a city that was turning a deaf ear to her.
    She wasn't receiving the right kind of support from the State.
    So Senator Kennedy and I went to the EPA to say, can you come
    in, can you begin to work on those issues.
        So it has to be a place where people can turn in order to
    make sure that their families are in fact protected.
        Now, over the years, of course, there have been many who
    have said, well, EPA just is not an agency which is needed to
    do this job. And I am reminded back in 1981 there was a guy
    whose name was Hernandez. He wrote a book after he had been
    considered and then rejected for the position of the head of
    the EPA, and he said he remembered the interview which he had
    in February 1981 to get the job as the head of the EPA, and in
    the meeting he was asked whether or not he would be willing to
    bring the EPA to its knees; and he said he did not know how to
    respond, but it was with the greatest relief when he learned
    that somebody else had been given the job, Ann Burford, Ann
    Gorsuch.
        Unfortunately, there is still this dynamic tension which
    exists between those that want to make it effective and work,
    and those that just want to bring it to its knees, and it is
    that balance that we have to strike here in order to make sure
    that we have an agency that is on the side of ordinary
    families, trying to protect their families from pollution in
    all of its forms.
        So I thank you, Mr. Chairman, for conducting this hearing
    and I am looking forward to hearing from the witness.
        Senator Inhofe. It is not appropriate to give an opening
    statement, but I do have a brilliant one I want to make a part
    of the record.
        Senator Rounds. Without objection.
        [The prepared statement of Senator Inhofe follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Our witness joining us today is Cynthia
    Giles, Assistant Administrator, Office of Enforcement and
    Compliance Assurance, U.S. Environmental Protection Agency. Ms.
    Giles has served as Assistant Administrator of OECA since May
    12th, 2009. That was when she was confirmed by the Senate by a
    voice vote for the position.
        She previously served as the Director of the Conservation
    Law Foundation's Advocacy Center in Rhode Island. Earlier in
    her career she served as Assistant United States Attorney in
    Philadelphia, head of the water protection program for the
    Commonwealth of Massachusetts, and the Director of Enforcement
    Coordination for EPA Region 3.
        We will now turn to our witness, Assistant Administrator
    Cynthia Giles, for her opening statement of approximately 5
    minutes.
        Assistant Administrator Giles, you may begin.

    STATEMENT OF CYNTHIA GILES, ASSISTANT ADMINISTRATOR, OFFICE OF
       ENFORCEMENT AND COMPLIANCE ASSURANCE, U.S. ENVIRONMENTAL
                           PROTECTION AGENCY

        Ms. Giles. Thank you, Mr. Chairman and Ranking Member
    Markey and members of the Subcommittee. I am Cynthia Giles,
    Assistant Administrator for the Office of Enforcement and
    Compliance Assurance, and I want to thank you for the
    opportunity to testify today about how EPA meets the challenge
    of ensuring consistent implementation and enforcement of
    Federal environmental laws and regulations.
        The mission of EPA's enforcement and compliance program is
    to protect both human health and the environment by ensuring
    compliance with environmental laws. Most of these laws are
    built around important ideas of federalism, where States and
    the Federal Government have important, complementary roles in
    protecting public health and the environment.
        EPA is proud of the environmental progress this Country has
    made over the last several decades, due in large part to the
    combined efforts of tribal, State, and Federal Governments.
    During the more than 7 years that I have been in this position,
    I have learned that EPA and our partners share a strong
    commitment to a clean environment, and also to ensuring that
    there is a level playing field for companies that play by the
    rules.
        EPA is sensitive to the need for consistency and fairness,
    as well as flexibility to adapt to local issues. The Agency has
    developed innovative tools to help the regulated community,
    particularly small businesses, understand and comply with
    environmental requirements.
        EPA prepares small entity compliance guides when a rule may
    have significant economic impact on small entities. These
    guides explain in plain English the action that a small entity
    must take to comply. EPA also operates web-based Compliance
    Assistance Centers that received over 2.5 million visitors last
    year, and we maintain topic-specific hotlines for responding to
    requests.
        In EPA's civil compliance program, we work closely with our
    State, local, and tribal partners to monitor compliance and,
    where significant violations are found and Federal enforcement
    is appropriate, work with the regulated entity to remedy the
    violation. Most cases brought by EPA are resolved through a
    mutually agreeable settlement. Judicial cases are often brought
    jointly by both EPA and States.
        EPA also works with our partners to implement an effective
    cleanup enforcement program by engaging responsible parties to
    perform cite investigations and cleanups. Encouraging
    responsible parties to enter into cooperative cleanup
    settlements has reduced the need for litigation, cleaned up
    thousands of communities, and saved the American taxpayer
    billions of dollars in cleanup expenses.
        The Agency also undertakes criminal investigation and works
    with DOJ to prosecute the most egregious violators, while
    working closely with local law enforcement partners. States
    often take the lead on prosecuting crimes that endanger public
    health and damage the environment.
        EPA is currently modernizing our enforcement program with
    the Next Generation Compliance Initiative. Next Gen is based on
    the principle that today's environmental challenges require a
    modern approach to compliance, using new information tools and
    approaches while strengthening enforcement. Better pollution
    monitoring and reporting helps to identify problems before they
    become really serious, helping save time and money for the
    regulated entities and for regulators at the tribal, State, and
    Federal levels. An example is our move toward electronic
    reporting. Making use of these kinds of modern information
    technology saves money for businesses, saves times for States,
    and increases transparency while improving accuracy.
        Over the last four decades, EPA, working with our State,
    local, and tribal partners, has made tremendous progress toward
    achieving cleaner air, water, and land for our Nation. A strong
    enforcement and compliance program has helped to make this
    possible. We will continue to work with our partners to take
    advantage of innovations and make smart choices about
    priorities, ensuring that the public health comes first. We
    know that achieving this goal requires consistency, a level
    playing field, and flexibility that acknowledges and allows for
    the diversity in our Nation's environmental, economic, and
    demographic conditions.
        Thank you for the opportunity to testify, and I would be
    happy to answer any questions.
        [The prepared statement of Ms. Giles follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Rounds. Thank you for your testimony.
        Senators will now have 5 minutes each for questions. I will
    begin.
        I appreciated your comments with regard to the cooperative
    approach with States, and specifically I would like to focus on
    Section 114. The EPA has increasingly issued requests for
    information from regulated entities under the Clean Air Act
    Section 114. These requests sometimes inform future regulatory
    actions and, in other cases, lead to enforcement action.
        Despite the inherent principle of cooperative federalism in
    the Clean Air Act, the EPA Headquarters submits these requests
    without including its State partners, who are most familiar
    with the regulated entities. Do you think this practice is
    consistent with the principle of cooperative federalism in the
    Clean Air Act, and is there any reason not to include State
    regulators on such correspondence, and would you consider
    including these State regulators on such correspondence moving
    forward?
        Ms. Giles. Thank you, Senator. Thank you for that question.
    As you point out, Section 114 is the authority that Congress
    gave to EPA to collect information to look for potential
    violations, so we use it for that purpose. I am not aware of
    the increasing use that you reference, but we do, and have,
    consistently used that authority to collect information about
    potential violations, and we also do routinely share
    information with States about what we know about violations or
    issues of concern, and they, likewise, share information they
    have with us.
        Senator Rounds. It is interesting that you bring up the
    fact that there is a concern as to whether or not there
    actually is an increasing use of it, and I am just wondering
    who is accountable for keeping the records of who does receive
    these letters and the purpose of the requests.
        Ms. Giles. We use 114 authorities when it is appropriate to
    review specific concerns that we may have about compliance. I
    am not aware that we separately track them, but we are careful
    to use them just in those instances where we have a reason to
    believe that there is a concern that requires attention.
        Senator Rounds. Would there be any reason why we shouldn't
    be able to keep track of the number of 114 requests that are
    made and their outcomes? Seems to me to be a reasonable metric
    to keep.
        Ms. Giles. Well, we do track, of course, the cases that we
    bring, and Clean Air cases very frequently are based on
    information we gain from 114 letters.
        Senator Rounds. Do you think that there is someone that
    keeps track of the number of 114s? I would just ask for the
    record if you don't know if there is, could we get you to
    followup with the Committee and find out whether or not there
    is someone responsible for keeping track of the 114s? And, if
    not, is there any reason that you could think of why we
    shouldn't be keeping track of the number of inquiries made to
    the 114 process?
        Ms. Giles. I am not specifically aware of a separate record
    that is kept, but I would say each enforcement team and
    regional office is responsible for ensuring the appropriate use
    of Section 114 letters. I would be happy to look into that
    further and get back to you.
        Senator Rounds. It would be very interesting to find out
    the number of 114s. As you say, if there is a perception out
    there that the 114s have increased, and you are not sure if
    they have, it would be a fact one way or another that would be
    useful to have in front of us for these purposes. Fair enough?
        Ms. Giles. I will look into that and get back to you,
    Senator.
        Senator Rounds. OK, thank you.
        How does the EPA justify the use of 114 letters to require
    operators to require a lengthy and rather expensive design
    evaluation that are not expressly required by current
    regulations? Isn't this a backdoor way of requiring the
    industry to change its operations without a transparent public
    rulemaking process of notice and comment?
        Ms. Giles. Thank you, Senator. The 114 authority does allow
    EPA to ask facilities to collect information about emissions or
    other relevant information to determine if there is compliance.
    It is not for the purpose of rulemaking; it is for the purpose
    of determining if there is a pollution problem that requires
    enforcement attention.
        Senator Rounds. Thank you.
        Senator Markey.
        Senator Markey. Thank you, Mr. Chairman, very much.
        Over the last 6 years your office has seen a 9 percent
    decrease in funding and a 17 percent reduction in your work
    force. Your responsibilities have not decreased over the last 6
    years; you still have the same statutory and regulatory
    responsibilities. So you have been really asked to do more with
    a lot less over the last 6 years, is that correct?
        Ms. Giles. Senator, that is certainly correct. We have,
    along with the rest of the Agency, struggled with declining
    budgets.
        Senator Markey. And how is that working out?
        Ms. Giles. Well, we have made every effort to innovate, as
    both of you mentioned in your opening remarks, to innovate to
    make sure that we are making use of new technologies to find
    the most serious pollution problems, and we direct our
    enforcement attention to the most serious situations.
        Senator Markey. Well, let me ask this. A report released
    this week by the National Resources Defense Council states,
    ``At State and Federal levels, resources for the enforcement of
    the Safe Drinking Water Act have been decimated by poor funding
    and bureaucratic indifference.'' Overall, do you agree with the
    NRDC recommendations to strengthen drinking water enforcement
    and address environmental injustices?
        Ms. Giles. We certainly agree that drinking water
    compliance and enforcement is at the very top of the list for
    EPA's priorities, and we know that the States feel the same way
    about it, and we are heightening our attention to this
    important topic and appreciate the input of organizations like
    NRDC drawing more attention to it.
        Senator Markey. Well, it turns out that, in 2015,
    enforcement actions have been taken on only 11 percent of the
    8,000 violations of regulations designed to ensure that our
    drinking water is free of dangerous levels of lead and copper.
    Might the cuts in your budget and work force be partially
    responsible for the limited enforcement actions?
        Ms. Giles. Senator, I am not really sure where NRDC got
    their numbers. I can tell you that, in 2015, which is, I think,
    the year that they were focused on in their report, there were
    about 6,000 enforcement actions for drinking water taken across
    the Country, primarily by States, to address concerns about
    drinking water compliance.
        Senator Markey. How about the EPA?
        Ms. Giles. EPA takes a much smaller number because we have
    an oversight role, primarily, with respect to drinking water. I
    think we had somewhere over 100 enforcement actions for
    drinking water.
        Senator Markey. So what additional actions are you taking
    at the EPA in order to oversee this Flint mess at large across
    the whole Country, community after community, and are reporting
    that they have the same problem?
        Ms. Giles. Well, specifically with respect to Flint, as you
    mentioned, EPA did issue an enforcement order back in January,
    and we are working closely weekly, daily with the city of Flint
    and the State of Michigan to return that system to acceptable
    condition. I am pleased to say we are making good progress, but
    we are going to stay at it until we make sure that system is in
    good shape.
        Senator Markey. So, when you look at Flint, you are looking
    at a disadvantaged community. They obviously need a lot of help
    in order to make sure that these issues get resolved. It is not
    always a disadvantaged community. Woburn, Massachusetts was a
    good example of the community that had just been ravaged by
    industries, Monsanto, W.R. Grace and others, just using the
    land and the water as a dumping ground for TCE. By the way,
    under TSCA, the EPA just might be able to ban TCE in the years
    ahead, so that is about a year wait, but hopefully TSCA will
    make that possible.
        So, can you talk a little bit about how disadvantaged
    communities need a little bit more help from the Federal
    Government is they are going got be able to deal with these
    environmental issues that endanger their children?
        Ms. Giles. Senator, thank you. We totally agree that the
    overburdened communities in America require our attention and
    they need to know we have their backs, so that is what our EJ
    2020 agenda that is out for public comment now is designed to
    accomplish, to make sure that we are focused in rulemaking,
    permitting, enforcement, cleanup, and in our science on
    addressing the questions that these communities struggle with.
        Senator Markey. I just want to say, Mr. Chairman, through
    you to Chairman Inhofe, that I actually called Ann Anderson
    last week to tell her that we had overhauled TSCA and that this
    chemical which was the principal culprit in giving her son
    leukemia, and other children in that neighborhood, was now
    going to be potentially regulated and potentially banned under
    this new law.
        And she obviously, 40 years later, because of the
    incredible courage which she showed and resourcefulness, the
    Government had failed her, she had to do it by herself to do
    this epidemiological study of her own neighborhood. Ultimately
    Superfund got created because of her story, and that ultimately
    became a movie called A Civil Action, a famous book called A
    Civil Action. But that plus Love Canal kind of led to Superfund
    being passed, and now on the Superfund site out there we have a
    lot of industrial development, but we also have the Jimmy
    Anderson, named after her son, Transportation Center.
        So that is a good example of where public sector investment
    or oversight then led to economic development that now serves
    the long-term best interests of the community of Woburn. So
    there is a good enforcement action that turned into something
    that was economically much more beneficial for that community.
        Thank you, Mr. Chairman.
        Senator Rounds. Thank you.
        Senator Inhofe, in this case Chairman Inhofe, I just would
    like to add that Senator Markey earlier had indicated the
    success that you clearly had the responsibility for with regard
    to the creation and the upgrade of TSCA, and also your success
    the other evening in the brownfields; and I would also like to
    add my congratulations to you for this bipartisan effort as
    well.
        Senator Inhofe. Well, this was a huge joint effort, right?
        Senator Markey. Thank you for saying that, because I was
    praising you behind your back.
        Senator Inhofe. Oh.
        Senator Markey. On brownfields and TSCA.
        Senator Inhofe. Well, I certainly forgive you for that.
        [Laughter.]
        Senator Inhofe. Let me get back, Ms. Giles, to something
    the Chairman was talking about on the 114s, because we have
    heard from people that the oil and gas companies, that these
    are used to pressure them to curb and monitor methane emissions
    before the EPA has even issued a methane rule for the industry.
    Now, are you contending that these are not enforcement letters,
    but they are, I think you said, informational letters?
        Ms. Giles. Thank you, Senator Inhofe. Yes, 114 letters are
    for the purpose of collecting information, they are not
    enforcement actions.
        Senator Inhofe. So would you confirm that they are not
    targeting methane, let's say, in future consent decrees?
        Ms. Giles. I am not aware of the specific matter that you
    are referring to, but Section 114, that section of the statute,
    does give EPA the authority to ask companies for information
    about pollution and emissions as we are looking into the
    potential violations that may be occurring.
        Senator Inhofe. We all talked about and made our own
    comments about what happened in Paris and the President coming
    up with a commitment that he would be reducing CO2 emissions by
    between 26 and 28 percent by 2025, and then we made an effort
    through every group we could find, including the EPA, to
    determine how he is going to do that and we haven't been able
    to find anyone who has any idea.
        In fact, I don't think it can be done. I don't think he
    does either. But it appears that your office stepped up
    enforcement of VOC emission requirements against the oil and
    gas sector, and the chairman commented, as a backdoor effort
    for the EPA to cut greenhouse gas emissions.
        Now, the question I would ask you is have you been
    pressured or do you have any kind of a mandate to reduce
    greenhouse gas emissions through enforcement against utilities
    and the oil and gas industry to help the President meet these
    climate commitments? Has that happened?
        Ms. Giles. No, it hasn't. Senator, I think what you may be
    referring to is some enforcement work that EPA has done with
    respect to VOC emissions, as you mentioned, from the oil and
    gas sector, which is with respect to existing laws that have
    long been in effect, and deal with pollution issues in some
    communities that are quite significant in the formation of
    ozone as a result of some of these industries.
        Senator Inhofe. In a broader perspective on your
    regulations that you are in the process of doing, have you been
    talking to the Administration about seeing what regulations can
    be adjusted or changed or put forth that would help them meet
    these requirements? In other words, nobody knows how he is
    going to get to a 26 percent reduction, and I am if you have
    had conversations with them saying, through the regulation,
    what can you get done.
        Ms. Giles. Senator, the Enforcement Office doesn't write
    regulations, so I am not aware of what conversations----
        Senator Inhofe. So you haven't had conversations.
        Ms. Giles. I personally have not.
        Senator Inhofe. You know, it wasn't long ago that Al
    Armendariz made the statement, when he was talking to a bunch
    of subordinates, that, you know, what we have to do to the oil
    and gas industry is the same thing that the Romans did when
    they went through Turkey; they went into various small
    villages, crucified the first four people, get their attention.
    And we actually got the wording that he used on that, and after
    that happened he was let go.
        What is your evaluation of a comment like that, that a man
    who is working for the EPA, making to subordinates and going
    after a particular industry?
        Ms. Giles. I would disagree with that comment in the
    strongest possible terms. I do not agree with what he said and
    I disavowed it in public at the time.
        Senator Inhofe. If that is the case, why is it you praised
    him for it when you wrote him a letter saying, I just want to
    say how impressed I am at the terrific work the region did in
    the range order, what specifically he was talking about at that
    time. Great job.
        Ms. Giles. Senator, the comment I was making to him was
    with regard to a specific enforcement action, it was not with
    respect to his comment.
        Senator Inhofe. Well, it was a terrific job, and this was
    right after he did that.
        Ms. Giles. I don't believe it was after he said that.
        Senator Inhofe. Oh, yes it was. The date was specifically
    the 8th of December 2010. And it was the spring of 2008 that he
    made the statement.
        Ms. Giles. Thank you for refreshing my recollection. It may
    have been after he made that comment, but it was not after I
    knew about the comment that he had made.
        Senator Inhofe. Thank you, Mr. Chairman.
        Senator Rounds. Senator Sullivan.
        Senator Sullivan. Thank you, Mr. Chairman.
        Administrator Giles, good to see you. I am appreciative and
    I always think it is important to emphasize that everybody on
    this Committee certainly is focused on making sure we have the
    cleanest air and cleanest water in the Country; certainly
    something that is a big issue in my State, in Alaska, where we
    do have some of the most pristine environments and clean air.
        One of the things I have raised on the Committee a lot is
    my concern about legal issues where I think the EPA is not
    following the law. I think it is not just us, but it is
    frequent court cases. And it also relates to the area that you
    are in charge of in terms of enforcement and compliance.
        I want to talk a little bit about the summer of 2013 in
    Alaska. Are you familiar with what happened in Chicken, Alaska
    during that summer?
        Ms. Giles. Generally, yes.
        Senator Sullivan. So that was when I think it was seven
    armed EPA agents, rifles, body armor, several ATVs, made a
    raid. Anything less than calling it a raid on a plaster mining
    operation, of a bunch of Alaskans who were out plaster mining,
    looking for Clean Water Act violations. The State of Alaska did
    an extensive report on that and one of the things you talked
    about, working closely with law enforcement, they said that
    there was actually very little coordination with law
    enforcement when you came in, scared the living daylights out
    of a bunch of Alaskan miners looking like, you know, the U.S.
    Army as opposed to the EPA.
        Have you learned any lessons on coordinating better with
    State officials on something like that? The Governor's report
    in Alaska said that there could have been a terrible tragedy,
    terrible accident; a bunch of EPA enforcers coming in, rapid
    raid. You said that you are focused on working closely with law
    enforcement. What have you learned from that raid?
        Ms. Giles. Senator Sullivan, thank you for the question. As
    you know, the Governor's special council did do a review of
    that situation and found that the investigation was done
    professionally and courteously; and I would add not just by
    EPA, but----
        Senator Sullivan. Oh, I don't think so. Did you find any
    violation of the Clean Water Act in that investigation?
        Ms. Giles. The information that was found was turned over
    to the State and to the prosecutors for their evaluation.
        Senator Sullivan. The answer is no. There were no Clean
    Water Act violations in that raid that was conducted.
        How much does EPA spend on training your officials, your
    agents, in terms of high-powered military weapons and arms
    training?
        Let me get to just a more direct question. When EPA started
    out for the first 20 years, you did not have armed agents. Why
    do you believe you need armed agents now, when in your initial
    20 years you didn't have armed agents? Why do you need armed
    EPA agents now? You spend millions of dollars on training,
    weapons, bullets. Why do you need that?
        Why can't you rely on, for example, if you go to Chicken,
    Alaska, why can't you rely on the State troopers to work with
    you for cooperation and coordination, so they can go in, if you
    think it is dangerous? Why is EPA spending so much money on
    having armed agents, when the first two decades of your
    Agency's existence you didn't have that?
        Ms. Giles. Senator, the reason that was sought and the
    reason that Congress decided to give that authority to EPA was
    because the mechanism that was working up to that point was not
    working now. President Reagan is the president who specifically
    sought that authority. In his signing statement he said, I am
    pleased to sign this bill into law because it contains the
    explicit law enforcement authority for the Environmental
    Protection Agency, which this administration actively----
        Senator Sullivan. Well, my first amendment as a U.S.
    Senator, my first bill was actually to disarm the EPA, because
    I don't think you need the weapons. I think it would force you
    to actually cooperate, which you didn't in the Chicken, Alaska
    case, with local law enforcement, and to have them be in charge
    of any kind of weapons in terms of any kind of dangerous
    mission. I still think that the vast majority of Americans
    don't know that we have had a dramatic increase in the arming
    of our Federal bureaucracy.
        I am someone who is a strong Second Amendment supporter. I
    believe in an armed citizenry, but I don't believe in an armed
    bureaucracy. And I think that I am going to continue to work
    with my colleagues here to throttle back on this area of the
    Federal Government's increasing power to arm Federal agents. I
    think the EPA has not shown that it needs these weapons, and I
    think that is something that the Chicken, Alaska raid in
    particular demonstrated.
        Let me turn to the Gold King Mine site issue. If a private
    company had released 3 million gallons of contaminated water
    into a river, would your office have charged them criminally or
    brought civil or criminal charges to a private company that did
    something like that?
        Ms. Giles. Senator, the law and enforcement distinguishes
    between the company who makes and releases pollution and the
    entities that are trying to respond and cleanup pollution that
    other people created. So, in the case of EPA's action in Gold
    King, we were acting as a responder, trying to prevent releases
    of pollution that were left there by others.
        Senator Sullivan. The EPA Administrator told us in a
    Committee hearing that she would hold the EPA to a higher
    standard that a private sector company. There have been
    numerous instances where the EPA has actually criminally
    charged people who accidentally, not on purpose, polluted
    rivers with much less amounts of pollution.
        Why has nobody in the EPA ben held liable, been criminally
    charged? The EPA administrator told this Committee she would
    hold the EPA to a higher standard, and yet nothing has
    happened. And if a private sector company did this, it is
    likely that the CEO or some members of that company would
    actually be in jail right now.
        You have not demonstrated any commitment similar to what
    the EPA administrator said she would do, which is hold EPA to a
    higher standard than the private sector. How come that has not
    happened?
        Ms. Giles. I totally agree, Senator.
        Senator Sullivan. You agree with what?
        Ms. Giles. I agree that EPA is responsible and that we
    should hold ourselves to the same standard or higher that we
    would expect from a private party.
        Senator Sullivan. Then why has that not happened and people
    have gone to jail for doing something less than you did?
        Ms. Giles. In the event of a response action, if somebody
    causes a spill, as part of a response action, not pollution
    they created, we generally do not assess fines or pursue them
    for violations as you are discussing here. We do that in the
    case of someone who creates the pollution and is responsible
    for releasing it.
        Senator Sullivan. Didn't you create the pollution and
    release it?
        Ms. Giles. We did not. We were responsible for the release.
    The pollution was not created by EPA; we were attempting to
    remedy the pollution that was left there by someone else.
        Senator Sullivan. But for the EPA's action that day, would
    the Animus River have been polluted?
        Ms. Giles. I totally agree we are responsible for that. And
    what we expect from private parties when they are in that
    situation, if they are doing a response action and they make
    the situation worse, we expect them to fix it, and that is what
    EPA has been attempting to do.
        Senator Sullivan. But no one is civilly liable or going to
    jail, as has happened in the past.
        Ms. Giles. EPA does not typically assess penalties or
    pursue enforcement actions other than to get response parties
    to clean up the mess that they made, and that is what EPA is
    taking responsibility for doing, which we should do.
        Senator Rounds. I think what we will do is just in terms of
    since there are just a few of us here, I think we are going to
    try to do one more round. We are going to limit it to 3 minutes
    per senator, and we will roll on through, and I will begin.
        I have a specific question concerning the followups on the
    inspections. When the EPA conducts an inspection on facility,
    what are the policies and guidelines that the EPA follows in
    order to keep in communication with the facility and report the
    results of the inspection in a timely fashion? If there such a
    thing as an average time that it takes to report the results of
    an enforcement action to an inspection facility, what is it? Do
    you keep track of that? What should be considered timely for a
    followup response?
        Ms. Giles. We do. Thank you, Senator. We certainly do
    attempt to respond and communicate in a timely way with the
    facilities, all the way from talking to them at the time when
    the inspector is there through what subsequent action may be
    appropriate; and I would say the time for that probably varies
    quite a bit by the extensiveness of the inspection and the
    seriousness of the issues found there.
        Senator Rounds. If the EPA delays reporting the results of
    an inspection to a facility, what recourse does a facility have
    to get a more timely response from the EPA? I think you
    probably understand the reason. You inspect a facility; there
    is a threat of an enforcement action, clearly, with the
    inspection; there is a concern about whether they get a clean
    bill of health or whether they have to look at defensive
    actions coming in the future. It seems to me that there ought
    to be some kind of a timeframe in which the EPA should have a
    responsibility to at least let the organization know whether
    there is going to be an enforcement action that they are going
    to be following.
        Ms. Giles. Yes, Senator. I would agree that it is important
    for us to stay in communication with the facilities, and we do
    certainly support and encourage folks in doing that. Any
    facility that does not think that they are getting information
    in a timely way, we would certainly hope they would call us,
    and we would make an attempt to communicate with them at that
    point.
        Senator Rounds. When you do the enforcement actions, do you
    communicate with your partners, the States in this particular
    case? And at what point does the communication with the State
    begin, or is there a process that you have in place within
    policy that directs that communications begin once again with
    the State, or are you in communication with the States during
    the entire time?
        Ms. Giles. Senator, thank you. Yes, the regions have
    regular communications with their State counterparts in the
    different compliance programs, and that varies from weekly to
    monthly to quarterly, and the purpose of those is to share
    information, what the States know, what EPA knows, and to see
    if we can reach joint decisions about what the best way of
    proceeding should be.
        Senator Rounds. What about in cases where you have specific
    enforcement actions that at least an inspection has been done
    with a facility? Is there any way for communication with the
    States? Would the States know what is going on with the
    activity that you brought or that you may bring with a facility
    within their jurisdiction as well?
        Ms. Giles. I think, Senator, generally the regions do have
    that communication with States around inspections that they are
    doing and what they have found, and, likewise, States share
    with EPA information that States have about pollution problems
    and compliance issues and discuss the best way to approach
    them.
        Senator Rounds. Thank you.
        I will just say earlier I had requested the information
    concerning the number of 114 requests, and what I will put into
    my official request will be that you just simply look at it
    over a 10-year period of time, over the last 10 years,
    including the most recent data that you might have. And we will
    extend you a formal letter on that, OK? Thank you.
        Senator Markey.
        Senator Markey. Thank you, Mr. Chairman, very much.
        May I ask, Ms. Giles, if EPA's special agents have ever
    been attacked or killed as they are in the line of duty in
    enforcing the law?
        Ms. Giles. It is unfortunately the case that EPA agents who
    are executing search warrants or arresting people for serious
    environmental crimes have been assaulted, and it also happens,
    unfortunately too frequently, that the agents find significant
    quantities of firearms in these locations. So having a sidearm
    is a standard piece of equipment for any law enforcement
    officer, and we do the same at EPA, along with, of course, the
    training and the requirements that they follow the rules.
        Senator Markey. And I think that is very appropriate. These
    are crimes, in many instances, that the EPA is investigating,
    and those who have committed these crimes, or alleged to have
    committed these crimes, could have guns themselves.
        So to send an EPA law enforcement officer into a situation
    without a gun, while there could be a gun on the other side of
    the door, I think would basically differentiate an EPA
    enforcement officer from every other enforcement officer at
    every other level of government in the United States. And we
    know that the person behind the door could have a gun.
        We know that there is no law that if you are on a no-fly
    terrorist list that you can't buy a gun in the Unites States.
    We know that people can buy guns in gun shows without having
    gone through a background check. We know that people can go on
    Instagram and buy an Instagun.
        So we know that we don't have all the safeguards that are
    in place, and yet why should we say to an EPA enforcement
    officer, when there have been officers which have been attacked
    in the past, that they can't have a gun to protect themselves?
    Not to use it in an arbitrary way, but at least to have that
    kind of protection, which I think each law enforcement officer
    in our Country is entitled to.
        So I just think it makes no sense to have everybody else in
    America be able to buy a gun because of all the loopholes that
    we have, and that the only one subgroup in the whole Country
    that would not have a gun would be actually a law enforcement
    officer for the EPA. It just doesn't make any sense whatsoever,
    given the fact that they are in fact enforcing the laws of the
    United States of America.
        So I would just like to put a good word in for those EPA
    special agents who are risking their lives every time they
    knock on a door, every time they are investigating a crime. The
    consequences for the person that they are investigating could
    be quite severe and, as a result, a reaction to an EPA special
    agent could be something that is life-threatening. So I just
    want to put in a good word for all those people who are out
    there and work every day for us.
        Ms. Giles. Thank you, Senator. They greatly appreciate
    that.
        Senator Markey. Thank you.
        Senator Rounds. Senator Sullivan.
        Senator Sullivan. So, Administrator Giles, I want to go to
    another issue. I talked about the frustration of the Animus
    River example. I think that there is a sense, certainly in my
    State, of a do-as-I-say-not-as-I-do approach to some of the EPA
    enforcement, and I have raised this issue a number of times in
    this Committee, but you mentioned earlier a statement by a
    senior EPA administrator that you said you immediately
    disavowed.
        On the eve of the EPA vs. Michigan case, where EPA
    Administrator Gina McCarthy was asked if she thought that the
    EPA was going to win that case in front of the Supreme Court,
    she said she was confident that the EPA would; and then she
    said, ``But even if we don't win, it was 3 years ago. Most of
    them,'' meaning all the companies and private sector
    businesses, ``are already in compliance. Investments have been
    made and we'll catch up. We're still going to get at the toxic
    pollutions from these facilities.''
        Do you see a problem with that statement and do you disavow
    that statement? I mean, I find that statement to be remarkable
    because, in my view, it ignores the rule of law. It is
    essentially saying, heads, we win, tails, we win; it doesn't
    matter. Do you understand why a statement like that from the
    head of the EPA brings so much frustration to the average
    American who is trying to comply with the law, the average
    small business?
        Do you disavow that statement from the EPA Administrator
    and do you understand why--as you probably know, that statement
    has been quoted all over the Country. People were shocked when
    they heard her say that. Do you understand why people were
    shocked? First of all, do you disavow that statement by your
    boss?
        Ms. Giles. Senator, are you referring to the mercury toxic
    standard?
        Senator Sullivan. I am referring to the quote that the
    Administrator made on the eve of the EPA vs. Michigan Supreme
    Court decision, which the EPA lost, by the way.
        Ms. Giles. Well, from an enforcement perspective, what I
    can tell you is when rules become final, companies do make
    progress toward complying with them, and if rules are
    overturned many years later, many companies have already gone a
    long distance toward compliance.
        Senator Sullivan. But it seems to me that she has that as
    part of EPA's strategy, kind of like it doesn't matter whether
    we were right or wrong on the rule because the companies had to
    comply. Do you understand why that makes people frustrated? Do
    you want me to read the quote again?
        Ms. Giles. No, Senator. I understand what you are saying,
    your frustration----
        Senator Sullivan. No, it is not mine. I would say it is
    probably millions of Americans who are frustrated with that
    approach to the law and regulations by the EPA.
        Ms. Giles. Well, it certainly is the case that sometimes it
    takes quite a while for judicial cases to come to conclusion,
    and, meanwhile, companies do comply with the laws, has been my
    experience.
        Senator Sullivan. But you don't understand why a statement
    from the head of EPA just like I read would make a lot of
    Americans very frustrated with how Federal agencies,
    particularly yours, operates? You don't get that?
        Ms. Giles. I think the Administrator is expressing her view
    and confidence about the outcome of that litigation.
        Senator Sullivan. No, actually, she wasn't. I mean, I am
    fine with her saying that she thinks they are going to win; she
    has good lawyers. That is fine. That is actually a strong
    statement from the EPA Administrator. That is expected. That
    part of her statement is fine. It is the part of her statement
    that says, ``But even if we don't win, it was 3 years ago. Most
    of them are already in compliance. Investments have been made.
    We will catch up.'' That is really, even if we lose, we win.
    Like there is no way to lose.
        Ms. Giles. Senator, I think it is a statement of fact that
    many companies had made investments to comply with the
    regulation.
        Senator Sullivan. Oh, I know it is a statement of fact, but
    I am just asking you do you understand why that frustrates
    people. Can you see it? Can you sympathize with the small
    business person who fought that, thought it was illegal, and
    then the Supreme Court came out and said it was illegal, and
    then the head of the EPA says, hey, too bad, it was illegal,
    but you already had to pay for it; good luck. Do you see how
    that makes people frustrated?
        Ms. Giles. I think I am getting pretty far out of my zone
    in enforcement and regulations.
        Senator Sullivan. Well, that is enforcement. That has a lot
    to do with enforcement.
        So you don't see how that frustrates people. No sympathy
    there?
        Ms. Giles. It is not a matter of not sympathy. I think it
    is a statement of fact, which is a correct statement.
        Senator Sullivan. Thank you, Mr. Chairman.
        Senator Rounds. Thank you.
        Before we close, Senator Barrasso was not able to be here.
    We have three separate subcommittees that are all meeting at
    the same time and Senator Barrasso asked that I highlight the
    practical recommendations for improving the partnership between
    your office and State regulatory agencies.
        The Wyoming Department of Environmental Quality submitted,
    in October 14th of 2015, a letter to your office, of which I
    have a copy here that I will enter into the record, and I
    understand that the Wyoming DEQ has not yet received any
    response or outreach from your office on this letter. In the
    letter, I would like you to check and see what the followup
    was.
        If they have received it, if they have reviewed the
    recommendations that the Department of Environmental Quality in
    Wyoming has made, and if I could get from you a response back
    in writing once you have had a chance to find the letter and so
    forth. If you would agree to make sure that we get a copy of
    the response that you would expeditiously followup on and get
    back to the Wyoming DEQ.
        Ms. Giles. Certainly, Senator, I will look into that.
        Senator Rounds. Thank you.
        Senator Markey, thank you once again for this
    participation.
        I would like to thank Ms. Giles once again for your
    participation in our meeting today.
        I think it is important that we get in and we ask the
    questions and we get the followup and so forth, and at least
    share some of our thoughts, frustrations on both sides of the
    aisle in some cases with activity. But, nonetheless, I think it
    is important that we continue with these oversight hearings
    and, once again, I want to thank you for attending today.
        The record for this meeting will be open for 2 weeks, which
    brings us to Tuesday, July 13th. This hearing is adjourned.
        [Whereupon, at 3:35 p.m. the committee was adjourned.]

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