[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
__________
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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
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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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