[Senate Hearing 114-364]
[From the U.S. Government Publishing Office]
S. Hrg. 114-364
COOPERATIVE FEDERALISM: STATE PERSPECTIVES ON EPA REGULATORY ACTIONS
AND THE ROLE OF STATES AS CO-REGULATORS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MARCH 9, 2016
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpo.gov/fdsys
___________
U.S. GOVERNMENT PUBLISHING OFFICE
20-940 PDF WASHINGTON : 2016
________________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana BARBARA BOXER, California
JOHN BARRASSO, Wyoming THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska
Ryan Jackson, Majority Staff Director
Bettina Poirier, Democratic Staff Director
C O N T E N T S
----------
Page
MARCH 9, 2016
OPENING STATEMENTS
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 3
Boxer, Hon. Barbara, U.S. Senator from the State of California... 148
WITNESSES
Mirzakhalili, Ali, Director, Division of Air Quality, Delaware
Department of Natural Resources and Environmental Control...... 149
Prepared statement........................................... 152
Markowitz, Deborah, Secretary, Vermont Agency of Natural
Resources...................................................... 159
Prepared statement........................................... 161
Huffman, Randy C., Cabinet Secretary, West Virginia Department of
Environmental Protection....................................... 168
Prepared statement........................................... 170
Keogh, Becky, Director, Arkansas Department of Environmental
Quality........................................................ 177
Prepared statement........................................... 180
Pirner, Steven M., Secretary, South Dakota Department of
Environment and Natural Resources.............................. 189
Prepared statement........................................... 191
COOPERATIVE FEDERALISM: STATE PERSPECTIVES ON EPA REGULATORY ACTIONS
AND THE ROLE OF STATES AS CO-REGULATORS
----------
WEDNESDAY, MARCH 9, 2016
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:34 a.m. in room
406, Dirksen Senate Office Building, Hon. James Inhofe
(chairman of the committee) presiding.
Present: Senators Inhofe, Boxer, Capito, Boozman, Wicker,
Fischer, Rounds, Sullivan, Carper, Cardin, Whitehouse,
Gillibrand, and Markey.
Senator Inhofe. The meeting will come to order.
First of all, I am very happy to have the five witnesses
that are here today. We always like to hear from the States, at
least some of us do, and I would like to, at this point, have
any of our members who want to introduce those from their
State. Senator Capito, do you?
Senator Capito. Yes. Thank you, Mr. Chairman. I would like
to welcome Randy Huffman, who is our Cabinet Secretary, and has
been for many years, in West Virginia at the Department of
Environmental Protection. Randy was 3 years as the deputy, but
he has worked in all variety of areas, including abandoned mine
lands program. He is a graduate of West Virginia Tech. We see
him, or I see him, around town all the time, so welcome, Randy.
Thank you for your testimony and for your service to our State
and to our Nation.
Senator Inhofe. And Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman. Yes, I would.
First, I would also like to thank all of our witnesses for
coming here today to testify in front of this Committee on
State perspectives. I would particularly like to welcome to our
Committee today the Secretary of the South Dakota Department of
Environment and Natural Resources, or, as we used to call them,
Dirt and Water. Secretary Pirner has served as the DENR
Secretary for three South Dakota Governors, but he has also
been in various positions at DENR since 1979. Secretary Pirner
has more than three decades of experience with EPA regulations
and is truly an expert in the field.
Secretary Pirner has an impressive breadth of experience in
every type of environmental regulation. He has extensive
experience in EPA rules regulating water, air, and toxic
substances. Secretary Pirner leads an agency with approximately
180 full-time employees, and this small group of employees is
responsible for administering nearly all of the Federal
environmental laws from the EPA such as Clean Water Act, Clean
Air Act, and Safe Drinking Water Act. They are also responsible
for administering various State environmental laws in the State
with over 77,000 square miles of land.
Secretary Pirner knows all too well the demands of a small
State agency with limited budgets that they face while
attempting to administer the increasing multitude of EPA
regulations forced upon the States. Every day he is confronted
with the challenge of managing his agency's resources in a way
that will allow them to fulfill all of their State and Federal
duties as the environmental regulatory agency in South Dakota.
It should also be noted that over 30 percent of DENR's
operating budget is relied upon Federal funds. Every day
Secretary Pirner's goal is to make sure that South Dakotans
enjoy the cleanest air and water possible. In South Dakota, our
environmental record is a source of pride for all of us.
I can tell you that during the time that I worked as
Governor in South Dakota for 8 years, Steve was the secretary
of this department. He comes with a wealth of knowledge and an
interest in seeing that things get done and get done correctly,
and I am very, very happy that he has been able to make the
trek out here for this very special meeting. Thank you.
Senator Inhofe. It is very nice to have you here.
Senator Carper, did you want to introduce?
Senator Carper. Before I introduce Ali, I just want to say
to Randy welcome. I was born in Beckley and spent a lot of my
years growing up as a kid going back and visiting my
grandparents and my aunts and uncles and my cousins all over
the State. So it is great to have you here. I think you have
somebody with you today who is from Beckley. Nice to see you.
Welcome. Good to see you.
Ali, you have a name that is going to be most pronounced of
any of our witnesses today. Just to make it easy for my folks,
it would be easier to call him Ali. But his last name is
Mirzakhalili. Nice sound to it. When I was Governor, he has
been serving for the people of Delaware for close to 30 years.
He has been a key leader in the Department of Natural Resources
and Environmental Control. He used to work for the guy sitting
right behind me, Christoph Tulou, who is our Secretary of the
Department of Natural Resources and Environmental Control. So
this is like getting the band back together, and we welcome the
opportunity.
Ali is the Director of the Division of Air Quality with the
Department of Natural Resources and Environmental Control. He
is responsible for implementing all aspects of the Clean Air
Act requirements. He has 30 years of experience in all aspects
of air quality management, including program and regulatory
development, planning, compliance, and enforcement and
permitting. He is a professional engineer and holds a B.S. in
Engineering from the University of Delaware, an M.S. in
Environmental Planning and Management from Johns Hopkins
University.
He has been a great servant and friend. Welcome, Ali. We
are happy that you are here. Thank you.
Senator Inhofe. Thank you, Senator Carper.
Becky, we are going to hold you until Senator Boozman comes
here. I had breakfast with him, a prayer breakfast this morning
and I told him I would do that, so we will postpone yours.
Deborah, it is very nice to have you here. We welcome you
along with the rest of the witnesses.
Barbara and I will give opening statements, then we will
hear from you. Since there are five of you, I would like to
have you comply with the same time that we do up here.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Today's hearing is critical to our
understanding of the success and the lack of success of the
environmental groups across the Country. Indeed, in
appreciation of our unique system of federalism, Congress and,
in particular, this Committee must check in with States to
ensure this system is fully functioning when it comes to
actions initiated by the United States Environmental Protection
Agency, the EPA. For this reason, I want to thank our State
regulators for being here today to share your feedback on
whether the current regulatory framework between States and the
EPA is working in upholding the principles of cooperative
federalism.
Cooperative federalism is a core principle of environmental
statutes, including the Clean Air Act, the Clean Water Act, the
Safe Drinking Water Act, RCRA, and several others.
Unfortunately, under the Obama administration we have observed
a flood of new regulations breaking down this system in what
seems to be uncooperative federalism. The Obama EPA has
embarked on an unprecedented regulatory agenda that simply runs
over States by imposing an increasing number of Federal
regulatory actions on States while requesting even less funds
to help States carry out these actions. As some State
regulators have explained, EPA is requiring them to do more
with less.
Many of these actions are driven from the EPA headquarters
to fulfill a political agenda that often results in years of
litigation and inefficiencies that cost citizens more taxpayer
dollars and reap little to no environmental benefits.
Today we have a diverse panel of witnesses from States
across the Country working with different EPA regions and
experiencing unique environmental issues who will expand on
this breakdown. While State feedback varies, there are several
troubling themes that have consistently emerged. EPA has
neglected the responsibility to consult with States at the
beginning stages of regulatory actions; the EPA gives States
little time to digest complex regulations and provide
meaningful analysis during short comment periods; EPA has
allowed environmental activists to set regulatory deadlines
imposed on States through sue-and-settle agreements without
State input; EPA has increasingly used regulatory guidance to
circumvent the regulatory process; EPA has a severe backlog of
approving State implementation plans, yet has issued an
unprecedented number of Federal implementation plans over State
air programs; EPA budget requests have called for decreased
levels of State funding while requesting increased funds for
EPA bureaucrats; and EPA is deviating from its core functions
and duty to uphold cooperative federalism as we have defined
it.
These concerns are not limited to our witnesses today. Last
month I sent letters to all Committee members' State
environmental agencies asking for feedback on EPA actions and
the level of cooperative federalism. I appreciate the many
responses I got to this Committee and, without objection, will
make them part of the record.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. I look forward to receiving additional
State responses and to hear more from our witnesses today as we
take a hard look at what works and what does not work.
And to hear the other side, Senator Boxer.
[The prepared statement of Senator Inhofe follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
OPENING STATEMENT OF HON. BARBARA BOXER
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. How did you know?
[Laughter.]
Senator Boxer. Friends on the panel, thank you all for
being here, and do count me in on people who want to hear from
the States. So many of our States are leaders on the
environment, my own being a prime example. We have proven that
we can cleanup our environment and also create very good paying
jobs, and it has been proven over and over again.
I think that all wisdom certainly does not reside here. I
think every one of us would say that. And that is why I have
always liked the idea of minimum standards being set by the
Federal Government to protect all of our people, but allowing
the States to do more to protect their people from pollution;
and that is really at the heart of what this debate is all
about. To me it is not about States' rights, it is about
protecting people at a minimum level and then allowing the
States to do more if they want to.
Now, States have a very important role to play in carrying
out our landmark environmental laws, which we can talk about
them all day. I will make a prediction: We will never repeal
the Clean Air Act. We will never repeal the Clean Water Act. We
will never repeal the Safe Drinking Water Act. We will never
repeal the Superfund Act. We will never repeal the Brownfields
Act. Why? Because 90 percent of the American people support
that.
So what happens here in this committee, since my friend
took the chair, it was tough to swallow, but nothing personal,
what has happened is we are trying to see an undermining of
those laws through the back door, making it impossible,
lawsuits and the rest. So I just want to say this, and I will
ask unanimous consent to place my full statement in the record.
Senator Inhofe. Without objection.
Senator Boxer. You have to learn, all of us, by what
happens. We have to learn history; we have to look at current
events. And I am speaking for myself and only for myself when I
say this. When I look at what happened in Michigan, when I look
at the way that State handled the situation in Flint, I think
for us to be holding a hearing saying the Federal Government
shouldn't do anything, the fact is EPA, in writing, warned
them.
Did the EPA do enough? Not in my book. But they warned them
in writing. They told them to put anti-corrosive treatment into
those pipes. They ignored it. And I am not pointing the finger
at any one person, but somebody there is going to be blamed for
this at the end of the day when the suits finally come to the
courts.
But to me it is a moral crime. It is a moral crime. So to
just say the States should do it all, there shouldn't be
minimum standards, we shouldn't really triple-check these water
systems, I just don't buy it. And I think that what our laws do
I think are very happy compromise between the right of the
people who vote for president, who vote for senators, who vote
for House members, to know they will have a basic standard so
that they can be protected and their children can be protected,
and then say to the States, look, you are the laboratory. If
you can do more, fine, but protect them to at least a minimum
level. And that has been the way I have viewed this job. That
is why when we preempt States on this I think it is a terrible
thing to do, and I have shown that through my whole career.
But again I want to say thank you all, whether you agree
with me or not. I know two do and three don't, something like
that. But I am very happy to see all of you here.
Senator Inhofe. Thank you, Senator Boxer.
Senator Boozman, would you like to introduce your guest
from Arkansas? I already told her I was about half hog and
explained the genesis of that statement.
Senator Boozman. Well, in the interest of time, I just want
to thank her for being here and thank her for the tremendous
job that she is doing in Arkansas. We are very grateful to have
her onboard.
Like I say, we are just very pleased that you are here and
all that you represent. Thank you.
Senator Inhofe. Thank you, Senator Boozman.
We are going to start with you, Ali. I am going to follow
the direction of Senator Carper and take your short name, all
right? You are recognized.
STATEMENT OF ALI MIRZAKHALILI, DIRECTOR, DIVISION OF AIR
QUALITY, DELAWARE DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
Mr. Mirzakhalili. Chairman Inhofe, Ranking Member Boxer,
and members of the Committee, my name is Ali Mirzakhalili, and
I am Delaware's Director of Air Quality. I thank you for the
opportunity to testify today.
I would like to share with you Delaware's view of the
respective roles and responsibilities of the EPA, State, and
the U.S. Congress with respect to complying with various
environmental statutes and associated regulatory actions to
protect public health and the environment.
The Clean Air Act has been a huge success, preventing
literally hundreds of thousands of premature deaths, as well as
averting millions of incidents of morbidity. The health
benefits associated with the Clean Air Act far outweigh the
cost of reducing pollution by more than 30 to 1. Moreover, we
have accrued these health benefits over the same period as our
Nation's gross domestic product has grown. It is fair to say
that the Clean Air Act has not only been one of our Nation's
most effective environmental statutes; it is likely to go down
in history as one of the most effective domestic laws ever
passed.
The public generally does not differentiate between levels
of government; it simply expects the entire system to work.
Therefore, it is imperative that each part of Government, EPA,
Congress, and the States, fulfill its respective roles and
perform as effectively as possible.
As I State in my written statement, I believe EPA can best
fulfill its role by focusing on six important tenets: one,
using sound science to set national standards; two, providing
States flexibility to meet those national standards; three,
issuing guidelines and rules in a timely manner; four, ensuring
that States are held accountable for their actions; five,
providing a level playing field; six, setting standards for
sources of pollution that are of national significance and
where States may be preempted from doing so.
Congress also has a major responsibility in environmental
protection, including, most importantly, ensuring that it
provides adequate funding to EPA and the States to assist in
meeting our Nation's clean air goals. Unfortunately, in recent
years Congress has fallen short in this respect. The Clean Air
Act authorizes the Federal Government to provide grants for up
to 60 percent of the cost of State and local air pollution
control programs, and calls for States and localities to
provide a 40 percent match. Unfortunately, this has not been
the case. State and local responsibilities have expanded
significantly since 1990, while the grants have not, resulting
in Delaware and most other States self-funding over 75 percent
of their air programs' operating budget.
Despite all these challenges, States are trying to do their
best to comply with all EPA rules and regulations under the
Clean Air Act. In Delaware, I am proud to say we are meeting
all of our Clean Air Act obligations. We succeed by being
proactive, collaborative, and focusing our limited resources so
as to ensure all emitting sources in the State are reasonably
and appropriately controlled.
This year States face a number of important regulatory
deadlines under the Clean Air Act. These deadlines do not
differentiate between large States with ample resources and
small States like ours with fewer resources. I believe
Delaware's practice of ensuring all emitting sources are
appropriately controlled is key to our ability to manage this
workload in light of insufficient funding. If we can do it, so
can others.
Because of Delaware's effort to attain and maintain
compliance with earlier particulate and ozone standards, those
efforts are not wasted, and the Regional Haze program, Delaware
is complying with the 2012 PM2.5 standards and is subject only
to the first of the three sulfur dioxide requirements. These
deadlines do not represent an unmanageable workload for
Delaware in 2016.
We are continuing to work this year to reduce greenhouse
gas emissions, which are endangering public health and welfare.
This year Delaware will continue its work under the Regional
Greenhouse Gas Initiative and prepare our State's strategy
under the Clean Power Plan. I believe the CPP is an excellent
example of how EPA is thoughtfully and successfully working
with States and stakeholders to craft achievable and flexible
rules.
Delaware continues to experience poor air quality, however,
and impacts from ozone on public health and our economy.
Delaware's emissions control efforts to reduce ozone precursor
emissions have resulted in a situation where over 90 percent of
the ozone concentration adversely affecting Delawareans are
attributable to emissions transported into Delaware from upwind
States. Under the Clean Air Act, upwind States were required to
mitigate these emissions more than 5 years ago, yet they have
not done so.
In some cases the problem is that upwind emitting sources
have not controlled the emissions; in others appropriate
emission controls have been installed on units but, incredibly,
are not being operated. Any action this Committee can take to
require upwind States to comply with the Clean Air Act and to
increase EPA's resources to enable the Agency to ensure equity
would greatly help Delaware and others in similar situations.
Thank you for this opportunity to testify. I look forward
to answering questions.
[The prepared statement of Mr. Mirzakhalili follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Ali.
Ms. Markowitz.
STATEMENT OF DEBORAH MARKOWITZ, SECRETARY, VERMONT AGENCY OF
NATURAL RESOURCES
Ms. Markowitz. Good morning, all. My name is Deb Markowitz.
I am the Secretary of Vermont's agency of Natural Resources,
and I know if Senator Sanders was not in Florida, he would be
introducing me today.
Thank you for inviting me to testify on cooperative
federalism and environmental regulation.
Vermont is a delegated State. This means we take
responsibility for the oversight and implementation of Federal
environmental programs. We implement the Resource Conservation
and Recovery Act, the Clean Water Act, and the National
Pollution Discharge Elimination System Permit Program, the
Clean Air Act, and the Safe Drinking Water Act.
Vermont chose to take on these federally delegated
programs; EPA did not force us to do so. The Federal Government
didn't require it. Vermont chose to take responsibility to
implement these important regulatory programs in our State
because we know how important they are to Vermonters' health,
safety, and prosperity.
Not only do we rely on clean air and clean water and clean
land to protect the health of our people, but Vermont has a
land-based economy. Our top industries include tourism,
agriculture, and forestry. Each relies on a clean and healthy
natural environment. People come from all over the world to
swim in our lakes, fish in our rivers, hike in our forests, and
ski in our mountains. But this isn't all. In our manufacturing
and high-tech sectors, indeed, in every sector of business and
industry in Vermont, it is the natural beauty of our State and
our pristine environment that enables us to attract good jobs
and high quality employees to stay or relocate in Vermont.
By managing these delegated programs, Vermont can ensure
that our State is protected through regulation, assistance, and
enforcement. This local control is even more important in light
of the highly charged political dialog that our environmental
laws and regulations engender here in Washington.
While new rules promulgated by EPA take time and effort for
us to implement in our States, there are many good reasons to
support a strong Federal approach. First, we look to EPA for
the expertise to study and develop the science and technology
that underlies our environmental regulations. We could not meet
our mission to protect human health and to safeguard our
natural environment without this important Federal
contribution.
Second, we see value in having national standards for
environmental protection. As the children in Rutland, Vermont
who suffer from asthma and the anglers who can't eat the fish
they catch because of mercury pollution know well, pollution
does not honor State lines. EPA has given us many important
protections and Vermonters, as well as all Americans, have come
to depend upon them.
Finally, national environmental regulations provide an even
playing field among States, helping to prevent a regulatory
race to the bottom in a misguided attempt to attract economic
development.
It is important to acknowledge that the System of co-
regulation between EPA and the States is not always simple or
without a natural tension. There are times when we want to
address a problem differently than EPA's approach did in the
past, or when the Federal approach may have unintended
consequences for us in Vermont because of our small size and
rural character. In situations like these, we have found EPA
willing to listen to our concerns and to work with us to find a
solution.
On numerous occasions and across sectors the EPA has
supported Vermont in our efforts to implement programs to
protect the environment. EPA has allowed flexibility in
Vermont's program implementation, cooperated with us to achieve
our shared environmental goals, included Vermont's voice in
efforts to develop new rules and standards, and has shared
resources and expertise to help us more efficiently and
effectively implement our programs.
In my written testimony I have included a number of
specific examples, if that would be helpful.
In closing, I want to reiterate the value of our
relationship with EPA and that, for Vermont, this partner is
essential to protect our environment and the health of our
citizens, and exemplifies the doctrine of cooperative
federalism, and I am very happy to take questions. Thank you.
[The prepared statement of Ms. Markowitz follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you.
Now, Mr. Huffman.
STATEMENT OF RANDY C. HUFFMAN, CABINET SECRETARY, WEST VIRGINIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Mr. Huffman. Good morning, Mr. Chairman and members of the
Committee. Thank you for the opportunity to address this
Committee concerning federalism and environmental regulations.
As West Virginia's chief environmental regulator, I view
the cooperative relationship with our Federal partners
envisioned by Congress in all of our environmental statutes as
critical. According to the environmental council or the States,
over 95 percent of the environmental regulatory duties in this
Country are actually carried out by the States. Congress placed
the most important core responsibilities with the States
because it knew States are far more responsive to local
concerns and much more aware of the local environment than
distant bureaucracies.
In addition, States must be cost-effective, have balanced
budgets, and perform in the face of flat or declining revenues.
It is within these constraints that States have repeatedly
demonstrated not only that we are up to the challenge, but that
we actually continue to deliver the results Congress envisioned
when it created our environmental framework within the model of
cooperative federalism.
Unfortunately, federalism under the current Administration
has been less than cooperative with both EPA and Interior's
Office of Surface Mining. There is a constant flow of new
regulations, guidance and initiatives from these Federal
agencies, and much of it encroaches on the authority Congress
gave to the States, and nearly all of it adds new regulatory
burdens to State resources that are already stretched thin. At
best, EPA and OSM are indifferent to the mounting consequences
of their actions. At worst, we see these Federal agencies
continue to basically rewrite our Nation's congressional
environmental acts with no accountability.
I have many examples, but time will only permit me to cover
a few.
My first example is one with which we are all familiar.
Regardless of the position individual States take on climate
change, Section 111(d) of the Clean Air Act actually puts the
States, not EPA, in charge of developing standards of
performance. With little regard to the role Congress gave it,
EPA has seized the States' authority. Its carbon rule
establishes the minute details of one of the most complex new
regulatory initiatives in the history of the Clean Air Act.
EPA is increasingly establishing what amounts to binding
rules through guidance. States are expected to conform to the
results of this process as if EPA had promulgated a valid rule.
There are at least two problems with this: EPA guidance further
eliminates State discretion and it allows them to avoid the
accountability and transparency of rulemaking.
My final examples relate to similar actions by Interior's
Office of Surface Mining. The proposed Stream Protection Rule,
which I testified about before the Senate Energy and Natural
Resources Committee in October, is another example of a Federal
agency attempting to rewrite part of an act of Congress with no
mandate to do so. They further fail to involve the States,
which have primacy under the Surface Mining Act to carry out
these duties. The result is a proposal that has multiple
unlawful conflicts with Federal and State clean water laws.
OSM also routinely fails to approve State program
amendments upon which it is obligated to act. In fact, since
2009, West Virginia has submitted nine amendments to the Office
of Surface Mining for consideration, and only those that
propose to increase fees or taxes on the mining industry have
been approved, and only then on an interim basis.
My last example is OSM's misuse of 10-day notices to
correct permit defects. Ten-day notices are an OSM obligation
under the Surface Mining Act to notify the States when a mining
violation is suspected and has not been properly addressed. It
is clearly an enforcement measure to be applied to active
operations. In 2009, OSM was directed to use this regulatory
tool to correct deficiencies in State-issued permits, which is
clearly contrary to the Surface Mining Act.
Most States, including West Virginia, embrace the idea and
practice of cooperative federalism in regulating industrial
activity and protecting the environment. The practice is sound,
has great validity, and has been successful in the past. Since
2009, I have watched EPA and OSM go about executing an agenda
that does not concern itself with the rule of law for making
changes to our Nation's environmental statutes.
I don't want to create the impression that all of West
Virginia's interactions with EPA and OSM are negative. Across
many of our programs we have built very good working
relationships with our Federal counterparts at the regional
level. Most of the issues I have discussed appear to emanate
from EPA and OSM headquarters, which have little or no
understanding of what it takes to run a State environmental
regulatory program.
[The prepared statement of Mr. Huffman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Mr. Huffman.
Ms. Keogh.
STATEMENT OF BECKY KEOGH, DIRECTOR, ARKANSAS DEPARTMENT OF
ENVIRONMENTAL QUALITY
Ms. Keogh. Chairman Inhofe, Ranking Member Boxer, and
Senator Boozman, as well as members of the Committee, good
morning. I bring you greetings from Governor Hutchinson of
Arkansas, and I appreciated the opportunity to respond to your
call this morning.
We in Arkansas are seeking to drive regulatory policy that
balance effective environmental results, assure long-term
resource management, affordable energy, and economic growth
goals. We want a State that can seek to attract the newest
generation of professionals searching out healthy living
lifestyles and Arkansas's world-class recreational
opportunities.
Arkansas has invested heavily in assuring that we are wise
stewards of the abundant and clean air, healthy breathing air,
the amazing vistas with which we have been blessed. We do not
take our status as The Natural State lightly. In fact, we
strive to fairly and consistently the corresponding and
complimentary roles of environmental stewardship and economic
development.
Likewise, for decades we have successfully worked with EPA
under a symbiotic governing model that is the topic of today's
hearing. This notion is born of something uniquely American,
our system of federalism whereby the Nation and States function
together as co-sovereigns. Both the EPA and States had a
relatively balanced seat at the table, and we are known to do
in the south, we would all sit around the table and have a good
old-fashioned meal. There would be lively debate, ample
servings, and we would cooperate and prepare a meal together.
However, this once treasured family style dining with our
Federal partners has become a thing of the past. Now we have an
increasingly diminished role in the menu selection and meal
preparation. We are often forced to eat what is served.
The cooperative federalism model that has defined
Arkansas's relationship with EPA beginning in the 1970's has
morphed into something that is better described today as
coercive federalism. We have seen a decrease in time and
tolerance for State implementation plans and a dramatic
increase in EPA takeovers, or Federal Implementation Plans.
Historically, these FIPs were used as weapons of last resort
for our EPA partner, its nuclear option for States that were
unfaithful to the partnership or denied marriage outright.
Now FIPs are often used as an everyday tool, often of
dubious origin, in the EPA's vast arsenal. In the past 7 years,
States have been forced to digest more of these Federal
takeovers, known as FIPs, than were ever served in the prior
three Federal Administrations combined ten times over.
States will not waste the time to draft their own proposals
if they expect the Federal Government to do what it wants to in
the end. State sovereignty is diminished, and the opportunity
for local innovation is destroyed. Cooperation should be
fostered, not discouraged. We call on you, our Congress, to
help remedy this broken marriage through amendment or ancillary
legislation.
States are placed in the unfair position of having
purchased a very expensive seat at the table, but then finding
out meals are served exclusively from the EPA table. We are to
be served a fixed menu without a fixed price. States'
willingness to split the check, and occasionally buy dessert,
was mitigated by a healthy respect and accompanying deference
we received. Now we ask your assistance in resetting that
needle to its point of origin.
For air pollution, we seek air pollution prevention and
control is the primary responsibility of the States and local
governments. In our estimation, Congress should ring the dinner
bell calling for the meal to be served. States should host that
occasion and EPA should be a frequent and faithful guest at
each State's table. However, where we are now we can best
describe as a progressive dinner party gone bad.
States have recognized an unprecedented level of Federal
actions. To borrow a saying in the South, we have more on our
plate than we can say grace over. The sheer number of mandates
and deadlines further complicated by the complexity of the
rules leaves us in a position where being served appetizer,
soup, salad, main course, and dessert all at the same time. And
if we do not clean our crumbs, we are banished from the table.
States rarely have sufficient notice and implementation of
the rules to establish meaningful outcomes before moving to the
next one, and we are left unable to get a taste of one course
before the next one arrives. The EPA is afforded the luxury of
being the ultimate picky eater while they select what they
prefer on the menu, while we States are struggling to digest
the meals plus leftovers.
The reality that States are often now more pawn than
partner is nowhere more evidenced in the EPA's transformation
from a two-sentence legislative passage to the Clean Power
Plan, which had profound consequences and extraordinary costs.
Arkansas is seeking ways to work with how we can work with EPA
on consolidating efforts and superseding FIPs and SIPs without
facing legal conflicts.
In addition to the Clean Water Act, the State-developed
robust eco region natural condition water criteria in Arkansas
have now become unrealistic and often unachievable minimum
water protection standards. In this case, EPA has executed an
ultimate bait and switch.
Serving up cooperative federalism in a coercive manner is
distasteful, but the executive branch to ignore at our
metaphorical table that are stabilized by three legs and not
just one makes for a difficult and messy meal. We do want a
seat at this table. We should not be fed the regulation of the
day. In fact, the great majority of the FIPs we have result
from reinterpretation of the good neighbor provisions.
In conclusion, not only has the uniquely American
cooperative federalism model fallen, and the State role is now
less partner and more pawn, we do see sue and settle appearing
on the menu. We are left to wonder if special interest groups
currently occupy our seat at the table that once was reserved
for us. When States are disenfranchised, so is the truth of our
Federal democracy and the people we represent.
Thank you.
[The prepared statement of Ms. Keogh follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Ms. Keogh.
Mr. Pirner.
STATEMENT OF STEVEN M. PIRNER, SECRETARY, SOUTH DAKOTA
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
Mr. Pirner. Chairman Inhofe, Ranking Member Boxer, members
of the Committee, my name is Steve Pirner, Secretary of the
South Dakota Department of Environment and Natural Resources. I
appreciate the opportunity to share with you our perspectives
on why we do not believe the current regulatory framework
between EPA and the States upholds the principle of cooperative
federalism.
Let me provide you a few examples.
To help fund the administration of Federal regulatory
programs, EPA awards us a Performance Partnership Grant. In
2012, the Grant peaked in funding, but has declined during the
last 3 years. This decrease is certainly inverse to the huge
increase in Federal requirements for delegated programs and, in
our view, is an erosion of cooperative federalism.
An increase of Federal preemption on what we hold as State
rights is also detrimental to cooperative federalism. For
example, EPA and the Corps of Engineers developed a rule
intending to clarify which water bodies are subject to
jurisdiction under the Clean Water Act. The rule has faced
substantial opposition in South Dakota and we joined a lawsuit
with 12 other States to block the rule. Upon joining the
challenge, South Dakota Attorney General Marty Jackley was
quoted as saying, ``The EPA is overstepping its congressional
authority and seizing rights specifically reserved to the
States.''
Also under the Clean Water Act, EPA has proposed or
finalized new national water quality and effluent standards for
ammonia, nutrients, selenium, and dental offices. The bottom
line is that these new, more stringent standards are going to
cause additional wastewater treatment, which is going to drive
wastewater treatment costs up, perhaps to the point of being
cost-prohibitive.
Under the Resource Conservation Recovery Act, EPA finalized
regulations to regulate coal ash. This was prompted by the
liquid coal ash spill in Tennessee. Our single coal-fired power
plant, the Big Stone Power Plant, disposes of only dry ash, but
is still subject to the new rules which preempt DENR's existing
solid waste permit.
In a settlement agreement under the Clean Air Act between
EPA and the Sierra Club, the Big Stone Power Plant was listed
as a large source and needing to demonstrate compliance with
EPA's 1-hour sulfur dioxide standard. EPA never took into
account the new air pollution controls installed at a cost of
$384 million to meet the Regional Haze Rule. There is no doubt
these new controls will reduce sulfur dioxide emissions below
the thresholds established in the consent decree.
Another Clean Air dispute involves ozone. South Dakota is
one of only 10 States in the Nation that is in full attainment
with the national ambient air quality standards but, against
our recommendations, EPA adopted a new, lower standard for
ozone. We are now at risk of having a non-attainment status;
not because our air has gotten dirtier, but because EPA lowered
the standards potentially below our background levels.
In response to another petition from the Sierra Club, EPA
determined that certain startup, shutdown, and malfunction
exemptions in 36 States, to include South Dakota, are
inadequate under the Clean Air Act and need to be eliminated.
Our exemption allows for brief periods of visible emissions
because certain pieces of equipment are not fully functional
when these events take place. DENR's rule was first established
in 1975, was approved by EPA, and has not caused or interfered
with South Dakota staying in compliance with the national
standards. South Dakota has joined Florida's lawsuit against
the rule, along with 15 other States.
The final rule that highlights the lack of cooperative
federalism is the carbon dioxide standard for existing power
plants. In 2012, which is the base year that EPA used, 74
percent of the power generated in South Dakota came from
renewable sources. In spite of this remarkable record, EPA's
rule threatens the economic viability of the two fossil fuel-
fired power plants that we do have in the State and could
strand the Regional Haze controls previously mentioned at the
Big Stone Plant. Here again our attorney general has joined
lawsuits against the rule, most notably with West Virginia.
The bottom line is these new Federal requirements will have
a huge impact on our citizens and on our economy, but will
produce little or no known noticeable benefits in South Dakota.
For this reason, we believe that each State should have the
right and the freedom to address these issues individually,
using the principles of cooperative federalism and Executive
Order 13132 on federalism. As stated in the Executive Order,
``The Framers recognized that the states possess unique
authorities, qualities, and abilities to meet the needs of the
people and should function as laboratories of democracy.'' That
is not the case now.
I hope this information is useful to the Committee. Thank
you again.
[The prepared statement of Mr. Pirner follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Mr. Pirner.
All right, would you hold the poster up that we have there?
Ms. Keogh, according to this December 2015 timeline by the
Association of Air Pollution Control Agencies, there are nine
Clean Air Act deadlines for States this year alone. Your
testimony describes a number of these EPA actions as, and I am
quoting now from your statement, ``we have, at best,
overlapping and, at worst, conflicting directives.'' Can you
explain how competing deadlines impact your department?
Ms. Keogh. Thank you, Chairman. It is a bit frustrating as
we seek implementation of these numbers of regulations in a
very short timeframe. What we see as our program staff evaluate
these rules and seek implementation, we are modeling different
and often conflicting results for the exact same source or the
facility, and it often ignores the progress that the States are
already making, or continuing to make, on different timeframes.
Senator Inhofe. Thank you very much.
Mr. Huffman, on February the 23d of 2016, I led some 200
House and Senate members, 34 of those were Senate members, in
filing an amicus brief with the D.C. Circuit in opposition to
EPA's Clean Power Plan.
I did observe, Ms. Markowitz, you were the only one talking
favorably about the Power Plan, but I have to point out that is
because you are one of four States that is exempt from it. So I
think the others would probably agree with you if that were the
case.
Anyway, the brief argues, among other things, that the
Clean Power Plan violates the Clean Air Act's principle of
cooperative federalism, explaining, quoting from the brief,
``The EPA takes a coercive approach that commandeers the States
to implement and enforce the Agency's power choices.''
So I would ask Mr. Huffman, do you agree that the Clean
Power Plan coerces States to implement EPA's policy choices,
not the choices of States?
Mr. Huffman. Yes, Senator. I believe EPA's biggest
challenge in implementing the Clean Power Plan is it had to go
about it in a way that is unconventional. Typically, EPA will
regulate pollutants at the end of the stack, if you will, or at
the end of the pipe. And with regard to the Clean Power Plan,
the only way to do that would be to put a regulatory number, a
limit on carbon dioxide. And the only way to do that in a way
that gave the effect that they would want would essentially
shut down all fossil fuel production in this Country.
So the way they went about managing every minute detail of
how this Clean Power Plan should be implemented we think ran in
conflict with Section 111(d) of the Clean Air Act, which gives
the States the authority to establish those performance
standards; and EPA has done that instead of setting the
threshold and allowing the States to figure out how to do it.
Senator Inhofe. All right, thank you.
Mr. Pirner, there is a little bit of confusion, lack of
clarity following the Supreme Court stay of the Clean Power
Plan. Has your State continued to work on the rule? And if the
stay is ultimately lifted, do you expect compliance deadlines
to be extended? In other words, are you continuing to work as
if the stay were not a reality? How are you preparing for it?
I might ask the others the same thing.
Go ahead.
Mr. Pirner. Mr. Chairman, our plan before the stay was
issued was to proceed along a path such that we could do enough
to get the 2-year extension. EPA had said that that was not
going to be a high bar to reach, so we read through what they
were going to require and we had started to work on those
items. One of those items was a public participation process.
In response to that, we established a Website where people
could view some information and give us comments. We had also
scheduled some public input meetings.
The day after the stay was issued we canceled those public
meetings. The word that we are getting back from the legal team
that is leading that lawsuit is that they expect those
deadlines will be adjusted by the courts once the decision is
made.
Senator Inhofe. But expecting that and knowing that are two
different things.
Mr. Pirner. Yes, sir.
Senator Inhofe. Anyone else want to comment on that?
All right, Senator Boxer.
Senator Boxer. Thank you, Mr. Chair.
Mr. Mirzakhalili, as you described in your testimony,
Delaware is a downwind State, such as Rhode Island, I am sure
we will hear more about that, and much of the air pollution in
your State comes from upwind States. You say that ``it is EPA's
role to ensure equity between where pollution is produced and
where it is received.''
It seems to me that is right spot on. So if EPA did not set
minimum standards and all this went to your neighboring State
who is sending smog and everything else over your way, and we
left it all to each State, what would it be like for the people
of Delaware in terms of asthma, in terms of COPD, and the other
problems that come from filthy air?
Mr. Mirzakhalili. Thank you for the question, Senator
Boxer. I can answer that by saying they will be having a feast
while we get the smoke in our eyes. We suffer from the
consequence of those emissions if they are unabated. As I
mentioned in my testimony, some of those are simple to remedy.
The equipment has been installed, and they are just not
operating because the current scheme is a cap control.
Senator Boxer. Thank you. You answered that very well.
Ms. Keogh, I would love to be invited to your house for
dinner, because you obviously are focused on that, and it would
be fun. So you just heard our witness from Delaware talk about
the fact that if we didn't have these basic minimum standards
his State, they are wonderful people there, but they are
located in a place where they get those winds and they get that
pollution.
So if your State was in that circumstance, I know you do
get some pollution from surrounding States, but not to the
extent that some of these other States get it, wouldn't you
think it would be fair to limit that pollution? Because
wouldn't you be concerned? The science tells us there is a
direct link between dirty air and asthma and COPD and worse.
Can you understand their point, is what I am asking.
Ms. Keogh. Yes, Chairman.
Senator Boxer. Ranking Member.
Ms. Keogh. Ranking Member. I apologize.
Senator Boxer. It doesn't matter. He would be unhappy if
you called me chairman.
Ms. Keogh. I understand that.
With due respect, Chairman.
Arkansas does have very clear air and healthy air, and it
is difficult for a State like Arkansas to reflect on the model
assumptions that are made to implicate States which measure and
monitor such clean air against other States or impacting those
States.
Senator Boxer. But that wasn't my question. My question was
if you were one of those States that got a huge amount of
pollution from a next door State which did nothing to prevent
it, would you put yourself in the shoes of Delaware or Rhode
Island or these other States? It is just a simple yes or no.
Ms. Keogh. Our States work together when we have a
situation like that. We have worked with our neighboring
States.
Senator Boxer. OK, so your position is that your State can
tell another State what to do, and you are criticizing the EPA.
Now you are going to say one State is going to tell the other
State what to do. It is not realistic at all, and that is the
reason we passed Federal legislation, under Nixon, I might say.
Ms. Markowitz, can you explain why it is essential that we
have national minimum standards, while also allowing States to
be more stringent in protecting their citizens?
Ms. Markowitz. We are also an upwind State, so we are also
suffering. Vermont is a clean green State. We have some of the
worst air pollution in the Country in the little town of
Rutland, and that is because of the way the winds come from
coal-burning States into Vermont, and that is a problem for us.
And we have tried to work cooperatively with these States to
put in place those pollution controls that in many cases they
already have.
But in Vermont we want to do more. We recognize that we
have this culture of environmentalism, but, at a baseline, when
other States want to do less, it impacts our quality of life.
Senator Boxer. OK, let me interrupt you only to say you are
making my point. Minimum Federal standards let the States do
more.
Ms. Markowitz. That is right.
Senator Boxer. And I think that is what the beauty is of
the Clean Air Act which is under such fierce attack.
Now, Mr. Huffman, the January 2014 spill from the Freedom
Industry's chemical storage facility contaminated the drinking
water supply of more than 300,000 residents of Charleston. You
know that. We are now facing another drinking water crisis in
Flint, Michigan, where children were poisoned by the city's
toxic drinking water. Given these events, do you think EPA and
the States should be doing more, not less, to protect the
public's drinking water?
Mr. Huffman. Yes, Senator. I think that your point about
minimum Federal standards and then let the States figure it
out, that is absolutely the model that we should be following.
Senator Boxer. Good. Good.
Mr. Huffman. That is absolutely what we should be doing. My
point today, and I think the frustration with West Virginia,
with some it has been about what those standards are, but the
real problem for me as a regulator is the way they go about
implementing these standards. They are bypassing the guidelines
under the Federal environmental statutes for how to implement
one of these changes in minimum standards.
Senator Boxer. Well, Mr. Huffman, since my time has run out
and my chairman is coughing, which means he wants me to stop,
let me just say that I really respect what you just said. I
don't think that any agency, the Federal Government or any
State agency, should overstep its bounds. So we will talk more
about, because I think what you said is very fair. Minimum
standards, yes, but implemented in the right way.
Mr. Huffman. Correct.
Senator Boxer. Thank you.
Senator Inhofe. Thank you, Senator Boxer.
Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman. We pride ourselves
in South Dakota with the clean air. We do have challenges at
times. If there is a forest fire in California, we suffer from
the smoke from that. So we understand, when you talk about you
want clean air. We want it too. We think we do a good job in
our State.
Secretary Pirner, you have spent decades administering and
implementing environmental regulations on both the State and
the Federal level. Can you discuss, in your experiences, the
differences you have seen in terms of the quality and benefits
of regulations that have resulted from a process that
incorporates more State input compared to the regulations that
have recently been promulgated by the EPA?
Mr. Pirner. Senator Rounds, based on my experience, if you
go back and EPA rolled out an issue, and if everybody came to
the table and agree this is a problem and agree this is some
options that are viable, things get done, it works. If you
don't have that process in place and the Federal Government,
EPA in this case, is identifying the problem along with the
option, or a couple options, none of which work for you, then
we are left with the rash of lawsuits that I just mentioned in
my testimony.
Senator Rounds. Talk about ozone a little bit. In South
Dakota we are in compliance. We are one of the few States that
is in compliance. You have seen the new numbers coming out. Can
you talk a little bit about what that does in terms of a State
like South Dakota, where we are one of the 10 that actually
complies with the guidelines right now? You mentioned they want
to make a change in this, down to perhaps below our basic
numbers. Can you talk about that a little bit, about how
frustrating that is?
Mr. Pirner. Yes, Senator. To form ozone you have to have
certain emissions, and it has to react with sunlight and then
you get ozone. So ozone may actually form in a downwind State.
In South Dakota, we are a population of, what, about 800,000
people. We don't have the sources of the chemicals that react
with the sunlight to form the ozone.
So the ozone that we do have in South Dakota is either from
upwind States or is basically our background levels. And I
think based upon what we have seen, the new limit that EPA has
come out with is very, very close, if not above, our background
levels.
Senator Rounds. So what is a State like South Dakota
supposed to do when we are not in compliance?
Mr. Pirner. We haven't been there yet, thank goodness, but
I would assume we would go into a non-attainment status. We
would have to try to work with the EPA on figuring out what to
do, but, since we don't have the sources, I don't know what we
would do.
Senator Rounds. In your experience, how would you recommend
EPA change its practices of making regulations to better
incorporate States' perspectives in the regulatory process? In
other words, what are the implications of the EPA enacting
broad, overreaching national mandates rather than regulations
that take into account the differing characteristics of
individual States?
Mr. Pirner. Senator, your hearing today is on cooperative
federalism, and if you read that Executive Order that I quoted
in my testimony, it says in there that one of the principles of
federalism is that those decisions that affect people that are
made by the unit of government closest to the people are
usually the best decisions, and we would say that is still
true.
Senator Rounds. I would suggest that during your tenure,
from 1979 on, you have gone through multiple administrations.
Can you share with us a little bit about what you are seeing
right now with regards to either the consultations that are
either not there or the directives that are being laid out
right now versus the way it used to work? Whether it was in a
Democrat administration or a Republican administration, what is
different about what is going on right now?
Mr. Pirner. Senator Boxer said we are not going to repeal
the Clean Air Act and we are not going to repeal the Safe
Drinking Water Act, and we are not going to repeal these
environmental Federal acts; and I don't think anybody wants to
repeal those Federal acts. When those acts were put in place,
there were real problems in this Country; the environment was
really, really suffering, and that was the reason those acts
were put in place.
But in the intervening time period now tremendous progress
has been made; our water is cleaner, our drinking water is
safer, our air is cleaner. So I guess what bothers me some
about this is now we are trying to ratchet down to the next
environmental problem and we are getting to such low levels
that we are going to spend a lot of time, we are going to spend
a lot of money, we are going to spend a lot of resources, and
in the end what is going to be the benefit?
Senator Rounds. Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Rounds.
I mentioned in my opening statement that all these acts,
the Clean Air Act, we on the Republican side were very
supportive of that. In fact, I was one of the initial co-
sponsors of those. So I wouldn't want people to think that
these things are not working. They are working. We understand
that.
Senator Carper.
Senator Carper. Thanks so much.
Again, thanks to all of you.
I am going to put my old hat on as a recovering Governor
just to followup on what Ali said. During the time that Ali was
serving in the Department of Natural Resources, Christof Tulou,
sitting behind me, was the secretary and I was Governor for 8
years, also chairman of the National Governors Association for
a while. I get the idea that States are laboratories of
democracy. I like the idea that the Federal Government would
set some standards and say to the States, you figure out how to
do it, figure out the most cost-effective way to meet those
standards. I thought the six points that you outlined in your
testimony, Ali, I am almost tempted to go over them again and
ask everybody on this panel if you agree with those.
Before I do that, just be thinking about that. I am
telegraphing a pitch. That is what I am going to ask next. So
just be thinking what he said and how you feel about that.
The Chairman and I go to a Bible study that meets most
Thursdays. He has been to a prayer breakfast this morning. We
are people of different faiths here, but we actually do try to
figure what our faith is and abide by it. We are all people
with different faiths. But one of the things I think all of us
agree on, I don't care what religion we are, is treat other
people the way we want to be treated. I think that is a
standard that we can all embrace. I don't care what religion
you are; it is there in your religion. I think it applies here.
I could have shut down the State of Delaware's economy when
I was Governor, literally shut it down, and we would still have
been out of compliance in any number of air quality metrics.
That is just not fair. That is not right. That is why we need
others to be a good neighbor and to look out for their
neighbor.
There are some places in the Midwest where they create
cheap energy, burn coal, 500-foot tall smokestacks. Put the
stuff up in the air, it blows all the way over to the East
Coast, we get it. We end up with dirtier air. We have to spend
more money to clean up our air because other people are getting
cheap electricity, and it is just not right. So I would just
ask for all of us to keep in mind the Golden Rule: treat other
people the way we want to be treated.
The other thing I want us to keep in mind is I think it was
something, Mr. Pirner, that you said. We have made great
progress. When I was at Ohio State University, a Navy
midshipman there, there was a river up in Cleveland that caught
on fire, the Cuyahoga River. We all remember that.
I got on the train this morning in Wilmington, Delaware,
there was a river that goes right by the train station there in
Wilmington, the Christina River. We can't eat the fish there.
In fact, we can't eat the fish in most of the rivers in my
State. Frankly, there are a whole lot of other rivers in a
whole lot of other States where they can't eat their fish
either. And while we are making progress, the Cuyahoga River
doesn't catch on fire anymore, but we still can't eat our fish,
and we can do better.
We all agree that we ought to be guided by sound science.
Part of sound science says that some of the real problems for
air pollution is the size of the particulates that get into our
lungs that are most dangerous are the smallest. We have only
been concerned about the larger ones, but we find out, as we
learn more through science, the really dangerous stuff is the
really teeny weeny ones, micro jobs. So I would just ask us to
keep that in mind.
I want to go back to what Ali said. He made six points that
I just want everybody to say whether or not you think he is on
target.
He said, I believe EPA can best fulfill its role by
fulfilling the following: one, sound science. EPA must set
national standards as Congress mandated which rely on sound
science as a cornerstone of its work. That is No. 1.
No. 2, flexibility. Once EPA establishes its standards,
this agency should provide States with appropriate flexibility
to meet their obligations under the Clean Air Act and protect
public health and the environment. That is No. 2.
No. 3, timely rules and guidance. It is important that EPA
issue timely implementation rules and guidance for use by the
States.
No. 4, accountability. EPA should be consistent in the
outcomes it expects from States across the States and hold
itself and the States and local air pollution control agencies
accountable for meeting their commitments.
No. 5, equity. EPA must provide for a level playing field
among the States, kind of the Golden Rule deal that I just was
laying out.
And, finally, nationwide sources. EPA must address sources
that States are either preempted from regulating or lack the
necessary expertise to regulate, or that are most effectively
regulated on a national level.
Let me just start with you, Ms. Markowitz. Do you agree
with those? Has he laid it out pretty well or not?
Ms. Markowitz. Yes, I agree with that. It makes tremendous
sense. I think that is how we have been operating. We
personally, in Vermont, have experienced tremendous flexibility
in our relationship with Region 1.
Senator Carper. Thank you.
Mr. Huffman.
Mr. Huffman. Yes, Senator, those are great principles. We
agree with them and we long for those days when the execution
follows that ideal.
Senator Carper. All right.
Ms. Keogh. Think of this as a menu.
Ms. Keogh. I agree with Cabinet Secretary Huffman as well,
and the other members. These are good principles. It comes down
to the implementation and how we can work cooperatively, and
find solutions rather than create new challenges.
Senator Carper. Thank you.
Mr. Pirner.
Mr. Pirner. Yes, Senator, I would agree with those six
points as well and, as the other witnesses have said,
basically, it is how you carry it out.
Senator Carper. All right, good.
Mr. Chairman, I would say the ayes have it. Thank you all
very much.
Senator Inhofe. Well, thank you.
Senator Capito.
Senator Capito. Thank you, Mr. Chairman.
I want to thank all of you. And I neglected to mention,
when I talked about Secretary Huffman, that he also is a
colonel and serves as the Vice Wing Commander of the 130th
Airlift. So thank you for your service there, Colonel Huffman.
I am glad that Senator Carper went to the principles that
you laid out because I was going to use that in terms of my
questioning.
Secretary Huffman, you highlighted Section 303 of the Clean
Water Act in your testimony, and basically it says that the EPA
is asked to determine whether a change in the State's water
quality standard meets the requirements of the Clean Water Act.
And if the EPA determines that a water quality standard isn't
consistent, by law, the EPA has to notify within 90 days.
My understanding is that the West Virginia legislature
approved a change in the State's water quality standard just
last year, but the EPA failed to either approve or deny the
change within 90 days. I think the substance of the talk we are
talking about today is not so much the standards; as you
mentioned, it is the implementation, it is the lawfulness with
which the Federal agency is moving forward.
So, in my view, with them not notifying in the timely
fashion or giving you good direction, it violates the timely
rules and guidance that the director in Delaware was talking
about, and also the accountability portion of that.
How vital is that feedback for EPA, that it come in a
timely fashion to you so that you can fully implement?
Mr. Huffman. Well, thank you, Senator. Good to see you
again. It is critical because there are a lot of moving parts
in the environmental regulatory business. There is a lot going
on. We need to make these requests and we need to get answers,
and we need to move on. What is really frustrating is I can
submit a change for a water quality standard, and not get it,
and wrangle for months and sometimes years, but, yet, whenever
I get an opportunity to comment on proposed rules, I might have
3 days, I might have 4 days. And that is very frustrating and
it makes me wonder, if I were a conspiracy theorist, I might
wonder what their agenda is, what is going on here. So it is
frustrating.
Senator Capito. Let me ask you, too, the difference between
guidance and rules and regulations. You brought that up in your
testimony. We find that, really, throughout the Administration
in terms of offering guidance instead of rulemaking because it
does evade the legal aspects of creating a regulation. Are you
getting more guidance than you have in the past? Is it more
difficult? Is there enforcement mechanisms to guidance?
Mr. Huffman. Well, when you govern by guidance, instead of
going through the protocols that the Congress has set up in our
environmental statute, it allows you to get by with more; it
allows you to avoid the transparency and how you get to your
point; and we are seeing a lot of that not only with EPA, but,
as I mentioned, with the Office of Surface Mining.
Senator Capito. I think most of you have mentioned that
what you need is the Federal minimum standard nobody has a
problem with; it is the implementation aspect of it. But, also,
most of you have mentioned the flexibility that the States need
to have. Obviously, in West Virginia, we have a much different
situation than you have in Vermont. We are blessed with a lot
of coal and we use it and have used it, and we are cleaning it
up every day, but it is a bigger challenge for us in certain.
So we need that flexibility in West Virginia to meet those
standards because, as every member would say, clean air, clean
water is just as valuable to us. And I think we can eat a lot
of the fish that we catch in West Virginia, so we are very
happy about that.
Is the flexibility aspect probably the most difficult
hurdle for you all to overcome? I will start with you,
Secretary Huffman.
Mr. Huffman. I don't know if it is the flexibility or the
frustration. I know we are running out of time here. The
frustration really seems to be it is an inconvenience to
involve the public, to involve the States. It takes time. If
you want to make a rule, it takes time. And, as you all know,
that is a very cumbersome process.
The convenient way to do that would be, by fiat, to impose
it upon the States. That is what we are seeing. There is little
to no flexibility because it is already written. By the time we
get it, it is already written and the minds are made up, and it
is very difficult to overcome that.
Senator Capito. And I would just finally note that you
participated or agreed to participate with OSM to develop the
new stream buffer rule. Many States were involved with this.
And because of the numerous frustrations and really the lack of
listening that OSM was doing, most of the States pulled out of
that, I think. Is that correct?
Mr. Huffman. That is correct. There was a draft of that
rule that OSM mistakenly made public before, within days of us
signing on as a cooperating agency, it was already written.
Senator Capito. It was already written. Thank you.
Senator Inhofe. Thank you, Senator Capito.
Senator Whitehouse.
Senator Whitehouse. Thank you very much, Chairman. Let me
associate myself with the remarks of Governor and now Senator
Carper. As the attorney general of my State, Rhode Island, I
saw exactly the circumstance that he very well described. Not
only did the upwind States not make any effort to treat us
fairly, we often had to try to sue the upwind States with EPA,
or sometimes even sue EPA to enforce compliance with the Clean
Air Act.
On a perfect Rhode Island summer morning, you could drive
to work and hear on the radio a warning that today was a bad
air day, and the children and the elderly and people with
breathing difficulties should stay indoors. Stay indoors.
And, like Delaware, we could have shut down every outlet of
emissions in the State of Rhode Island and not gotten ourselves
into compliance, because it came from other States; other
States that fought compliance; other States that often had not
even put scrubbers on their smokestacks yet; other States that
specifically built high smokestacks so it would project the
emissions out of their State. They were very often States in
compliance with these air regulations, even though they were
the source of the emissions that were taking Rhode Island out
of compliance.
So I know there are going to be States that are going to
unhappy with EPA regulation. They would love to have the
regulation be as close to the people as possible because those
people have wangled it so that they can export their pollution
to my State, and not have to pay for it and not have to clean
it up.
And that is a real problem that I think EPA has to address.
It is very important to our downwind States. It is just not
fair for kids in Rhode Island not to play on a summer day
because they are having a bad air day. And what we have seen is
that EPA has cracked down more and more, sometimes because
States have sued, sometimes because they have acted on their
own, actually, our bad air days are diminishing.
But it took EPA to get after the States that were happy to
go along with the gag, because they had made their pollution
somebody else's problem. That somebody else was my Rhode Island
children, elderly, and people with breathing difficulties.
So, for the record, our engagement with Region 1 of EPA is
terrific in Rhode Island. We don't have complaints. We talk
back and forth; it is very open; there is no problem. So I
don't know if there is a significance to the fact that the
States that seem to be more in the export business are the ones
that have of the problem with EPA, and the ones that are more
in the we are getting clobbered business are the ones that
appreciate EPA, but certainly from Rhode island's perspective,
we appreciate very much what EPA is doing.
Let me ask a quick question just to kind of see where folks
stand, and let me start with Mr. Pirner.
Mr. Pirner, do carbon emissions from fossil fuel burning
cause changes in our atmosphere and oceans that portend harm to
people and to ecosystems?
Mr. Pirner. Senator, I am not going to enter into that
particular debate. What I would argue is that if we are going
to control carbon emissions, it has to be done in a way that
can work and that is feasible, and the first proposal that EPA
laid out in our State simply was not feasible at all.
Senator Whitehouse. Why are you unwilling to answer a
question at a hearing that is as simple as, do carbon emissions
from fossil fuel burning cause changes in our atmosphere and
oceans that portend harm to human beings? Why are you not
willing to enter into what you call a debate?
Mr. Pirner. Senator, because I am not an expert in that
particular topic.
Senator Whitehouse. Ms. Keogh, do carbon emissions from
fossil fuel burning cause changes to our atmosphere and oceans
that portend harm to humans and to ecosystems?
Ms. Keogh. I think you can find scientists that say both,
yes and no.
Senator Whitehouse. And what do you say?
Ms. Keogh. Well, I am not an expert, either, as the other
witness indicated.
Senator Whitehouse. Mr. Huffman, do carbon emissions from
fossil fuel burning cause changes to our atmosphere and oceans
that portend harm to humans and to ecosystems?
Mr. Huffman. I am sorry, I didn't mean to interrupt you,
Senator. I do believe that the science would indicate that our
climate is changing. I think that there is a lot of,
unfortunately, we are having the debate in the wrong place in
this Country over climate change. We are name-calling. It is
reduced to name-calling over whether you believe or don't
believe in climate change. Sure, the climate is changing. What
we need to be debating is what we should be doing about it. And
I don't know that we have come together as a Nation on that.
Senator Whitehouse. Well, clear enough for me.
Let me just say for the record, as I close out, that I
think every national lab, our U.S. military, NOAA and NASA, and
every single one of our lead home State universities would have
found that an easy question to answer with a plain and simple
yes. Thanks.
Senator Inhofe. Senator Boozman.
Senator Boozman. Thank you, Mr. Chairman.
Ms. Keogh, in your testimony you cite a dramatic decrease
in time and tolerance or State implementation plans and
dramatic increase in EPA Federal implementation plans under the
Administration. As depicted in this chart, the Obama EPA has
taken over State programs 54 times, more than the three
previous administrations combined times 10.
Director Keogh, are you concerned about this trend? Isn't
it true that State plans are integral to the Clean Air Act's
cooperative federalism structure and Federal plans were
intended as only as a last resort?
Ms. Keogh. Thank you, Senator. We are concerned about this
trend, and we understand as a State that Federal plans may be
necessary sometimes, in circumstances where States do not act
or choose not to act. But the frequency and process of the FIPs
have become so alarming, mainly because they take a Federal
solution that may be developed in a very short period of time
with limited information and replace a very thoughtful and
extensive process at a State level, where we have dealt with
what could be a reasonable solution, we vett it through
transparent processes and also search out whether we have
unintended consequences. So that is our biggest concern, is
that we replace our well thought out judgment with somebody
else's solution that may not have seen that same thoughtful
process.
Senator Boozman. Very good. As you know, under the Regional
Haze program, States develop implementation plans. EPA has
limited authority to reject the State plan and issue a Federal
plan instead. Still yet, in Arkansas, EPA rejected our State
plan and proposed an extremely expensive Federal takeover.
Director Keogh, is it true our State plan was on track to
achieve natural visibility conditions?
Ms. Keogh. Yes, sir.
Senator Boozman. And its proposed Federal Regional Haze
Plan for Arkansas, did EPA go beyond its limited procedural
role prescribed by the Clean Air Act?
Ms. Keogh. In Arkansas, we do believe so. In fact, when I
asked EPA, when they offered up the Federal proposal, why they
expanded the scope of the Regional Haze Plan to include sources
that were not legally authorized under the rule, EPA answered,
because we can.
Senator Boozman. How will the requirements of the Federal
Regional Haze Plan interact with possible actions under the
Clean Power Plan? Are those timelines intertwined in a
complicated way?
Ms. Keogh. They are for Arkansas, at least. Our State air
experts that evaluated both rules and have been working
diligently to assess impacts and solutions looked at models,
and I think it is important to show that the model under the
Regional Haze Plan, where they take into account cost-
effectiveness, assumes a source could install multi-million
dollar control equipment and do it cost-effectively.
However, when you look at the models and the timelines of
the Clean Power Plan, that same source no longer operates just
a few years later, after those controls are installed, and that
would be a very extremely costly mistake for Arkansans to pay
for, to install multi-million dollar controls, only to have the
source shut down to comply with the subsequent rule compliance
date.
Senator Boozman. Thank you.
Mr. Ali mentioned about the unfunded mandates. I think that
is something that I think we can all agree on is a real
problem. Some of these things we are having trouble on
agreement, but the unfunded mandates really is a problem.
Randy, can you address that a little bit?
Mr. Huffman. Well, it has really always been an issue. The
funding for the vast majority, and I don't know the number, of
our environmental regulatory programs in the States is provided
by the States, either through the General Fund budgets or, in
our case there is a lot of special revenue type accounts,
through assessments and fees on the industries that we
regulate. I don't know that I have ever seen any kind of an
analysis by EPA when a new rule is imposed or a new guidance.
There is never an analysis done, that I have seen, that would
indicate what the costs are that are associated with.
Senator Boozman. Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Boozman.
Senator Markey.
Senator Markey. Thank you, Mr. Chairman, very much.
Ali, thank you for being here. Some of your fellow
regulators have expressed concern about not being able to
comment on EPA rules. The Clean Power Plan changed
significantly from its draft to final form based on input from
the States, industry, and other stakeholders. Do you find that
the EPA is listening to you in terms of the flexibility, the
concerns which you have been expressing?
Mr. Mirzakhalili. I absolutely do, especially in terms of
the Clean Power Plan. I think that the level of outreach and
dialog with stakeholder involvement was unprecedented in that
effort. We see marked difference between what they proposed and
what was finalized, and we see our comments reflected in those
changes.
Senator Markey. Earlier in the hearing there was a
discussion of the number of deadlines approaching for the Clean
Air Act. The Massachusetts Department of Environmental
Protection has corresponded with Chairman Inhofe for this
hearing and he noted that Massachusetts will meet these
deadlines. Will Delaware be able to meet those deadlines as
well?
Mr. Mirzakhalili. We absolutely will be.
Senator Markey. Will Vermont be able to meet these
deadlines?
Ms. Markowitz. We absolutely will be. I want to acknowledge
that under the Clean Power Plan we don't have regulated
entities, so we don't have an obligation there.
In answer to your earlier question, though, there was an
unprecedented involvement even of Vermont in the development of
those rules because we are deeply concerned that whatever the
implementation is, that it could include the Regional
Greenhouse Gas Initiative that we are part of.
Senator Markey. So let me followup with you, Secretary
Markowitz. The Safe Drinking Water Act allows States to manage
public water systems within their jurisdiction if they meet
national standards set by the EPA. Given the ongoing situation
in Flint, Michigan, it is clear that we still have a long way
to go to ensure safe drinking water for every American. What
are the ways that we can enhance Federal-State cooperation to
ensure safe drinking water for all in our Country?
Ms. Markowitz. Well, this is an area where we are having
direct experience right now. We have an issue with a chemical,
PFOA, which was not a regulated chemical which is nevertheless
a carcinogen and an endocrine disrupter that has been found in
wells in Bennington; it is a chemical that is used in the
making of Teflon. And we really rely on EPA and their
scientific expertise to help us manage that.
In addition, they have come out with some new rules and
standards for the limits in copper and some other things that
we can find in our drinking water. This is an area of
partnership that is really important. The standards that they
set help us ensure that our Vermonters are healthy when they
are taking water from their taps.
Senator Markey. OK.
Ali, let me come back to you. As we are all aware, climate
change is a global problem, but it requires local solutions in
order to solve the problem, and Pope Francis, who taught high
school chemistry, came to Congress to preach his sermon on the
Hill to us to tell us that the planet was warming and the
science proved that, and that human beings were contributing to
it and the science proved that, and that we had a moral
responsibility to be the leaders for the planet.
So my question is since both Delaware and Vermont are part
of the Regional Greenhouse Gas Initiative, which has been
partnering now coming up to eight or 10 years to reduce
greenhouse gases, can you talk about how the EPA has been
coordinating with you to ensure that this problem, this global
warming problem can be solved by cooperation amongst the States
and working with the States?
Mr. Mirzakhalili. Thank you for the question, Senator. And
they have been. One of the key comments we made after the
proposal was for EPA's final rule to accommodate and use the
framework that we already set on the RGGI, and it is certainly
being accommodated. We think our RGGI solution is a very good
solution that can be actually expandable nationwide, and the
rule accommodates, actually.
Senator Markey. Thank you. And I appreciate the interState
aspect of this as well, much less the international aspect of
it, there is no question about it, but there has to be
cooperation. Silvio Conte, Congressman from Western
Massachusetts, and I introduced the first acid rain bill in
1981. It took until 1990 to pass the bill, but 1981. And that
was just because people in Ohio were putting these smokestacks
football field high into the air and blowing the smoke right
toward us, so we were the ones principally affected, Vermont
and all the New England States.
So it is clear that unless we work together we can't solve
problems of that magnitude, so we thank all of you for your
work in trying to accomplish that.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you.
Senator Fischer.
Senator Fischer. Thank you, Mr. Chairman and thank you,
Senator Boxer, for holding this hearing today, and thanks to
all the witnesses for coming.
The Nebraska Department of Environmental Quality shares in
the concerns that have been expressed by many of the witnesses
today. In the letter addressed to the Committee, our State has
written that ``While Nebraska has a good working relationship
with EPA Region 7, recent EPA headquarters regulatory actions
have snowballed. EPA's compulsive tinkering with standards and
limits, often before States have had a reasonable chance to
comply, make it difficult to reconcile those often competing
priorities.''
Secretary Pirner, in your response letter that was sent to
the Committee, you State that nearly all new Federal
requirements will have an impact on your State, its citizens,
and its economy, but will ``produce little or no benefits in
protecting public health and the environment.'' Like my home
State of Nebraska, South Dakota is a rural State that hosts
many unique and critical natural resources that benefit
citizens and communities.
Can you please elaborate on the challenges many rural
communities will face as a result of expansive EPA regulations?
And what are the economic impacts in terms of job growth and
industry investment from the EPA rules?
Mr. Pirner. Senator, part of my concern is that on the
water quality and effluent standards that I talked about in my
testimony, it is not that we are against having minimum
standards; but now we are ratcheting those standards down to
such a degree as to be almost infeasible in some cases.
I will just talk about the ammonia standard. We were one of
the first States to include ammonia as a water quality
standard. Ammonia can be toxic to fish. So we agreed with that
and we agreed that all of our large cities pretty much have
what is called tertiary treatment that treat for ammonia, and
have for many years now. But if we ratchet that level down, now
we are going to have install even more treatment.
Basically, the new standard is based not on fish anymore,
it is based on mussels. So I am going, well, then how did the
mussels do it when we didn't treat for any ammonia? And, again,
I am not a biologist and I don't understand all that, but all I
do understand is that the levels are getting down to such a
point as to be cost-prohibitive, and that concerns me because
if we do try to comply with those new standards, we are going
to be spending a lot of time and a lot of money that could be
spent in other areas.
Senator Fischer. Right. The Nebraska Department of
Environmental Quality, they discussed the need for streamlining
those Federal requirements. We are always worried about that
unnecessary duplication. So, Mr. Pirner, do you agree with that
statement? In your experience, do you see duplication as a
reoccurring theme among State regulators as they try to
interpret and then try to implement all these Federal mandates?
Mr. Pirner. Senator, I am not exactly sure I understand the
question. You mean duplication between the State and EPA?
Senator Fischer. In many cases, yes, but also between
Federal agencies. So it is not just EPA that comes down with
standards, but you have other agencies as well.
Mr. Pirner. Well, we certainly have other Federal issues
with the Corps of Engineers, with Bureau of Land Management,
with Forest Service. So there are many other Federal agencies
that we believe are infringing on States' rights besides EPA,
if that is the answer.
Senator Fischer. How much time does that add when you are
trying to meet regulations, when you have different agencies
out there that I would say they are piling on a number of the
regulations that we look at?
Mr. Pirner. Senator, it is certainly of concern. I will
give you an example. In our Department, we are a relatively
small Department. Our clean air program I think has 14 FTE in
it for the whole State. When the Clean Power Plan came out, we
took two of those people and they worked when it first came out
and we were trying to do comments and trying to figure out what
was going on.
Then, when the final rule came out, we had to go through
that process all over again. Basically, we process, I am going
to say, somewhere around 80 air quality permits per month that
are renewals and new and so on. I had to take 2 out of the 14
FTE out of that process to devote to just the clean air plan.
Senator Fischer. Right. In your testimony you talk about
the EPA's rule to regulate coal ash, and you note that the new
rule will preempt the existing solid waste permit that is
currently administered in your State. It is my understanding
the EPA is encouraging States to amend their State solid waste
management plans. Are you concerned about the timing for that?
Mr. Pirner. Yes, Senator, very much so. Again, we believe
our existing solid waste permit was adequately protecting the
environment. Now there is a host of new requirements that
somehow we have to merge in with that existing permit, and we
have to try to figure out how to do that in the least
disruptive manner to both the agency and the industry.
Senator Fischer. Are you limited in your flexibility?
Mr. Pirner. All I can say at this point is our negotiations
with Region 8 are ongoing.
Senator Fischer. Thank you.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Fischer.
Senator Gillibrand.
Senator Gillibrand. Thank you, Mr. Chairman.
Ms. Markowitz, as you know, New York and Vermont share Lake
Champlain, and both are part of the Lake Champlain basin
program. Working with EPA to improve the water quality of Lake
Champlain is very important to both our States. It is my
understanding that the EPA and the State of Vermont have been
working together to establish a new total maximum daily load
for Lake Champlain. Could you elaborate on how the EPA has
worked collaboratively with your agency to negotiate this
agreement?
Ms. Markowitz. Thank you. This is actually a perfect
example of an issue that could have been seen as an overreach
but, instead, really has ended up with a path forward that
offers us flexibility and an innovative approach to cleaning up
our waters. Lake Champlain suffers from terrible algae blooms
from phosphorus pollution. Unlike in the 1970's and 1980's, it
is not because of what is coming out of the wastewater
treatment facilities as it is coming off the landscape. So
rather than being point-source, it is non-point-source
pollution, precipitation-driven pollution.
So as we were working on a new TMDL for Lake Champlain, we
have been working on it actually for 4 years, they could have
just done it on their own, but they engaged us because they
understood that if we were going to clean up the Lake, we
really had to be involved because we understood what it would
take to engage municipalities and farmers and business owners
and developers and our transportation department in managing
stormwater-driven pollution.
It has been tremendously successful. We are waiting for the
final TMDL to come out. We already have a plan, though, to
implement that has been passed by our legislature, including
some funding, and I am happy to share it in more detail to any
of you because I think it is really the gold standard for this
cooperative Federalist approach.
Senator Gillibrand. Thank you. In your written testimony
you wrote that ``pollution does not honor State lines,'' which
is why you see the value of having national standards.
Mr. Mirzakhalili, you describe that our most important
responsibility under the Clean Air Act is to protect the health
and welfare of citizens throughout the Country from the harmful
effects of air pollution. Could you discuss some examples how
pollution in one State affects the health and citizens in
another?
And from your perspectives as State environmental
regulators, is the health of the citizens in Vermont, Delaware,
New York, or any State better protected by having national
standards that limit the amount of pollution that can be
emitted into the air we breathe? And, last, do you agree that
the EPA has not overstepped its authority in setting national
standards using the Clean Air Act, the Clean Water Act, and
other Federal environmental laws that States then implement and
which are based on what the science shows to be necessary to
protect public health and the environment?
Mr. Mirzakhalili. Certainly. Thank you for the question,
Senator. Delaware, Vermont, the Northeast is perfect examples
of States that are suffering from air pollution transport, and
that is EPA has come up with a transport rule recently to
allocate responsibility and establish how much State
contributes to the other. We happen to think that they haven't
gone far enough. We think EPA needs to do more. Some of the
transport good neighbor steps were due to us about 5 years ago,
so I think that some of the deadlines that you see here are the
result of things not getting done when they were supposed to
get done.
So I absolutely think EPA should do more in this area, and
I think we stand to benefit from that. We can't meet air
quality standards; right now, in practice, 90 percent of our
air quality, air resources have been allocated to upwind
States. I can't come into compliance without help.
Senator Gillibrand. Do you want to add to that?
Ms. Markowitz. Well, that is our experience as well. We are
barely in compliance in a number of parts of Vermont and, of
course, we have no contributing industries, so, again, it is
all upwind States. We have tried to negotiate; we have tried to
sue. EPA has had rules on the books, and we are very pleased
that they have come out with compliance deadlines, because that
will make a difference to the health of the people of the State
of Vermont.
Senator Gillibrand. Thank you.
Thank you.
Senator Inhofe. Thank you, Senator Gillibrand.
Senator Sullivan.
Senator Sullivan. Thank you, Mr. Chairman.
I want to thank the panelists for their testimony on a very
important topic.
I think it is very clear on this Committee we are all very
committed to clean water, clean air. There has been a lot of
focus on the Flint issue. Certainly nobody wants to have our
drinking water have poison in it, so the issue of clean water
is certainly going to come up because of that. I am really
interested in having to work with my committee members.
In my State, we have entire communities, entire communities
in Alaska that don't have running water, that don't have flush
toilets. Thousands of Alaskans, Americans, which I think is
outrageous, and I certainly want to work with this Committee on
not only addressing Flint, but other places that don't have any
of the benefits that most Americans just assume they have. We
don't have that in my State in a lot of communities, and it is
something we need to fix, not just in other places in the
Country.
But, Ms. Keogh, I want to followup. Your statement I think
really sums up a lot of the frustrations that so many of us
have, where you just stated where the EPA stated because we
can. Can you elaborate on that a little bit more, what you just
mentioned? I find that remarkably arrogant. I find that an
Agency that certainly dismisses the rule of law. I think there
is example after example after example, and it is not just
members from this Committee.
I am always surprised why this Committee, on a bipartisan
basis, isn't more focused on making sure Federal agencies
follow the law. Right now the EPA, in the last two Supreme
Court terms, lost, the EPA v. Utility Air Regulators case in
the Supreme Court lost; the EPA v. Michigan case has a stay on
the WOTUS case where over 30 States have sued; and in an
unprecedented, unprecedented action, the U.S. Supreme Court put
a stay on the Clean Power Plan.
So the EPA is losing every single major rule that they are
undertaking in the courts, with Obama administration officials,
other officials who are Federal judges, saying the EPA is
overstepping its legal bounds.
And you may have seen what Gina McCarthy said on TV on the
eve of the EPA v. Michigan case. When asked if she thought they
were going to win the case, she said yes. They didn't. But then
she said, ``Even if we don't win the case, it was 3 years ago.
Most of the States; companies are already in compliance.
Investments have been made. We will catch up.'' So it was kind
of like, hey, even if we lose, we win because everybody had to
abide by the law. I think that is outrageous, and it is the
source of frustration that so many Americans feel.
Can you just elaborate on this ``because we can'' quote? I
just find it the height of arrogance. Just for everybody's
information, the EPA is supposed to abide by the law, and the
Federal courts are showing in the last 3 years they don't.
Because we can is not an appropriate answer on people who work
for you.
Ms. Keogh. Yes, Senator. Thank you. It is disheartening.
We, as State regulators, find ourselves in that position every
day as we effect regulation to make sure that we follow the law
that is set forth.
Senator Sullivan. Of course. That is what we are supposed
to do, right?
Ms. Keogh. We do not create the law; we implement law. So
it is frustrating. Admittedly, I had very short notice that
this Federal plan was coming at the time, so I felt like it was
a genuinely honest question to understand so I could
communicate effectively why requirements were re-adding to the
State plan, and it was very disheartening, at a minimum, and
very frustrating or perhaps a violation of trust to answer it
with ``we can.''
Senator Sullivan. So they didn't attempt to cite a law or a
reg; they just said ``because we can.'' Sounds like a king to
me.
Ms. Keogh. The discussion went from a statement where
Arkansas made that we are on a glide path with the Regional
Haze Rule to actually advance and comply early, and that we
were doing everything in our State plan that was required under
the law. They went in and then, beyond that statement,
discussed a provision about rate of progress and how they could
require additional requirements under this phrase of rate of
progress, and we questioned that, when we have a rate of
progress that already exceeds or shortens the timeline and we
actually achieve compliance early.
So it became a bit of a circular conversation, to be honest
with you that it was around there is a phrase in the law that
says we can go beyond BART sources to seek a better rate of
progress. And that was where they left it. And we did not end
with a positive outcome at that, and obviously we continue to
discuss that with EPA today.
Senator Sullivan. Mr. Chairman, do I have time for one more
question? I see that there is no other remaining members.
Senator Inhofe. You don't have time, but go ahead.
Senator Sullivan. I just want to followup just on the issue
of consultation, where one of my frustrations, and I had been
the attorney general of the State of Alaska and the
commissioner of natural resources, but we often found that the
consultation either didn't exist or was very cursory. And yet
in every statute that we are talking about, the Clean Air Act,
the Clean Water Act, every EPA-focused statute, the
consultation requirement is not optional; it is mandatory.
So I would just like any of the witnesses here to, if you
have a sense on the consultation more as just a box check when
you indeed get it, or do they try to actually listen and
implement your concerns? Because one of the things that we have
seen is a one-size-fits-all rule form Washington rarely works,
whether it is Alaska or Vermont or Arkansas or South Dakota. So
I am wondering about your experience with mandatory
consultation, that is what it is in all the laws, it is
mandatory. Do you feel that you are getting that enough?
Maybe I will start with Mr. Pirner.
Mr. Pirner. Senator, I think it is more of they check the
box, in my opinion. A lot of these proposals that come out,
there is a public comment period. We comment along with
everybody else, but just in the example of the Clean Power Plan
they received, what, 1.6 million comments or something. So if
you are talking a State to Federal agency consultation process,
I wouldn't consider submitting one set of comments, which we
submitted under the Governor's signature, go as being a State
to Federal agency consultation.
Senator Sullivan. Anyone else on the consultation issue?
Mr. Mirzakhalili. Senator, if I may. I co-chair a
committee, National Association of Clean Air Agencies, and I
can tell you that EPA is present on every call they attended.
And that is not just with my committee; with other committees
where the organization has a presence of EPA staff. They bring
their thinkings to us, they share early drafts, they explain.
So that may be a good place to plug in a conversation with EPA.
Could they do better? In some instances, yes. We hear there
is friction and tension between guidance and flexibility. You
said you wanted the rules. I understand. You said you want to
go to rulemaking. Rulemakings are rigid. The guidance gives you
a little more flexibility. So we have to be careful what we ask
for of EPA and make sure they can produce what it is that we
want. So the rules set the minimum standards; guidance provides
some technical assistance; and the rest of it is our
responsibility to collaborate and cooperate and get done.
Senator Sullivan. Thank you.
Ms. Markowitz. I would add to that I am on the executive
committee of the Environmental Council of the States, and EPA
is at every meeting and comes on to monthly calls if we ask
them to.
So as described by Ali, they have made themselves
remarkably available to us. In our region, as we are developing
our performance partnership agreement, they also, in Region 1
at least, are offering tremendous flexibility in terms of how
we are going to be managing our obligation under our delegated
programs.
And, of course, they could always do better. One of the
places, there is a difference between listening and agreeing,
so I think they do a great job listening. They don't always
agree. And that is, really, in part, some of the frustrations
that you sometimes hear from my colleagues. They tend, in this
Administration, we tend to agree with them more, so we are not
dissatisfied with the level of attention that we are getting
from them in this dialog.
Senator Sullivan. Mr. Huffman, do you have any thoughts on
that?
Senator Inhofe. Senator Sullivan, we will have to chop it
off here. You are 5 minutes over.
Senator Sullivan. OK, Mr. Chairman. Thanks. There is no one
else here, so I was just wondering.
Senator Inhofe. OK. I mean, Senator Boxer wants to have the
extra time that you have used, and that is fine.
Senator Sullivan. I mean usually, most committees, if there
is no one else here and we still have questions, it doesn't
seem to be a big ask to continue to ask questions.
I will submit questions for the record.
Senator Inhofe. All right, that is fine. Thank you.
Senator Boxer, take whatever time.
Senator Boxer. That is very sweet of you.
Senator Inhofe. Thank you.
Senator Boxer. I just want to talk about the courts,
because my colleague, Senator Sullivan raised the issue, so we
looked it up. EPA has won 70 percent of the cases before the
Supreme Court. As a matter of fact, on the 30 percent that they
lost, sometimes they lost because they were not doing enough.
And we can send you the memo on that, because I think that is
important.
I also think it is important to reiterate a fact clearly
that should be in evidence. This is one Nation under God,
indivisible, with liberty and justice for all. We know that. So
to think that the Federal Government would not be an important
partner to the States is wrong.
Now, I know some of you say it is fine for them to be a
partner, but I want to pick up on what Mr. Pirner said, because
it is very clear. This has been a great panel, by the way. All
of you have been so articulate and it has been very interesting
here.
But, Mr. Pirner, you said, look, in the 1970's we had
terrible air pollution and it is understandable, it made sense
to cut the pollution. And now you said things are so much
better EPA is going too far. I mean, that is essentially what
you said. And I have to give you some facts that I am going to
put in the record, with the Chairman's agreement. And this is
important.
Eleven million Americans have COPD, chronic obstructive
pulmonary disease. Eleven million. 22.6 million Americans have
asthma, including 6.1 million children. And there are 1.68
million estimated new cases of cancer in 2016. So to sit there
and say that there is not work to do it seems to me strange.
And you are in such an important position to help those people.
Now, maybe some of them live in your State, some of them
live in a neighboring State, and to say that you have a great
relationship with a State and they will be fine is just not a
fact in evidence.
Ms. Keogh, you are here, you are giving testimony to this
Committee, and it has to be truthful, and I know you were. So
over the next week can you please send me the name of who told
you, the name of the person who said we are ordering you to do
this because we can? I want the name of that person because
whoever said that was absolutely wrong, and I don't want people
to just throw it out. Who did it? If you can put that in
writing confidentially, I would greatly appreciate it, because
I want to find out why they would say such a thing.
I just think overall this panel has really proved the
point.
There is another fact on coal ash which you complained
about, Mr. Pirner. Right now there are 331 hazardous coal ash
ponds that could, if not improved, lead to a loss of life. So,
you know, maybe you can sit there and say what you say, but
when I swear to protect the people, I am going to do it; and
this is the Environment Committee, this isn't the pollution
committee.
And Senator Inhofe and I have a different view of the role
of the Federal Government. I think it is all very fair, but at
the end of the day this is one Nation, so setting minimum
standards, making sure our people are protected, whether they
are in my State or a State adjacent where the pollution from my
State may actually go to another State, I have an obligation,
even if it is in my State.
And, by the way, we have 40 million people and a lot of
pollution, a lot of industry. We try our best. We do have
forest fires; we have natural disasters. So we have an
obligation, and my State doesn't complain about it, they just
cleanup their act. And it is just a function of what is right,
what is morally right. And you can measure the progress as you
look at the health of the people.
This is not some conversation about the meaning of the
Twelfth Amendment, the Tenth Amendment, the First Amendment; it
is really about the health of our people. We should do
everything we can to protect their health, and as long as I am
vertical that is what I am going to be working on.
Thank you.
Senator Inhofe. Well, thank you, Senator Boxer. Anything
else?
Senator Boxer. No.
Senator Inhofe. All right.
Let me just make a final comment here that it seems like
every time we have a hearing it ends up to be a global warming
hearing, or at least that is injected into it. Let me just
share my personal thought that climate is always changing. I
have said this on the Senate floor. I can't remember, I wasn't
alive in 1895, but in 1895 we went through a period where they
first started using another ice age. In 1918 was the first time
they used global warming. And then, of course, that changed
again in 1945 when that was another ice age they were talking
about. And then, of course, that changed in 1975. So about
every 30 years this happens, it has always been changing.
The interesting thing is in 1945 that was the year they had
the highest CO2 emissions in the history of this Country,
recorded history, and that precipitated not a warming period,
but a cooling period that sustained for another 30 years. So I
just think that has to be said. I know that the public
understands that now. I can remember back when I was the bad
guy and we were talking about this back in 2000. At that time
it was considered to be the No. 1 concern; not it is 15 out of
15 according to Gallup's March poll. So people have caught on
and they are going to enjoy continuing to bring that up.
Last thing is we all want a clean environment, and when you
mention the Clean Air Act and all these other acts, we were all
for them, and I was back then. In fact, I was an initial
sponsor of the Clean Air Act.
So, with that, we will go ahead and adjourn. I would like
to have one short quick word with Mr. Huffman and Ms.
Markowitz, if I could. Thank you.
[Whereupon, at 11:27 a.m. the committee was adjourned.]
[all]