[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
  
  
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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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