[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
HEARING TO REVIEW THE IMPACT OF EPA REGULATION ON AGRICULTURE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MARCH 10, 2011
__________
Serial No. 112-5
Printed for the use of the Committee on Agriculture
agriculture.house.gov
_____
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COMMITTEE ON AGRICULTURE
FRANK D. LUCAS, Oklahoma, Chairman
BOB GOODLATTE, Virginia, COLLIN C. PETERSON, Minnesota,
Vice Chairman Ranking Minority Member
TIMOTHY V. JOHNSON, Illinois TIM HOLDEN, Pennsylvania
STEVE KING, Iowa MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas LEONARD L. BOSWELL, Iowa
K. MICHAEL CONAWAY, Texas JOE BACA, California
JEFF FORTENBERRY, Nebraska DENNIS A. CARDOZA, California
JEAN SCHMIDT, Ohio DAVID SCOTT, Georgia
GLENN THOMPSON, Pennsylvania HENRY CUELLAR, Texas
THOMAS J. ROONEY, Florida JIM COSTA, California
MARLIN A. STUTZMAN, Indiana TIMOTHY J. WALZ, Minnesota
BOB GIBBS, Ohio KURT SCHRADER, Oregon
AUSTIN SCOTT, Georgia LARRY KISSELL, North Carolina
STEPHEN LEE FINCHER, Tennessee WILLIAM L. OWENS, New York
SCOTT R. TIPTON, Colorado CHELLIE PINGREE, Maine
STEVE SOUTHERLAND II, Florida JOE COURTNEY, Connecticut
ERIC A. ``RICK'' CRAWFORD, Arkansas PETER WELCH, Vermont
MARTHA ROBY, Alabama MARCIA L. FUDGE, Ohio
TIM HUELSKAMP, Kansas GREGORIO KILILI CAMACHO SABLAN,
SCOTT DesJARLAIS, Tennessee Northern Mariana Islands
RENEE L. ELLMERS, North Carolina TERRI A. SEWELL, Alabama
CHRISTOPHER P. GIBSON, New York JAMES P. McGOVERN, Massachusetts
RANDY HULTGREN, Illinois
VICKY HARTZLER, Missouri
ROBERT T. SCHILLING, Illinois
REID J. RIBBLE, Wisconsin
______
Professional Staff
Nicole Scott, Staff Director
Kevin J. Kramp, Chief Counsel
Tamara Hinton, Communications Director
Robert L. Larew, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
Lucas, Hon. Frank D., a Representative in Congress from Oklahoma,
opening statement.............................................. 1
Peterson, Hon. Collin C., a Representative in Congress from
Minnesota, opening statement................................... 3
Prepared statement........................................... 4
Schilling, Hon. Robert T., a Representative in Congress from
Illinois, prepared statement................................... 5
Tipton, Hon. Scott R., a Representative in Congress from
Colorado, prepared statement................................... 5
Walz, Hon. Timothy J., a Representative in Congress from
Minnesota, prepared statement.................................. 6
Witness
Jackson, Hon. Lisa P., Administrator, U.S. Environmental
Protection Agency, Washington, D.C............................. 6
Prepared statement........................................... 8
Supplementary information.................................... 59
Letter and submitted questions............................... 65
HEARING TO REVIEW THE IMPACT OF EPA REGULATION ON AGRICULTURE
----------
THURSDAY, MARCH 10, 2011
House of Representatives,
Committee on Agriculture,
Washington, D.C.
The Committee met, pursuant to call, at 2:03 p.m., in Room
1300, Longworth House Office Building, Hon. Frank D. Lucas
[Chairman of the Committee] presiding.
Members present: Representatives Lucas, Goodlatte, Johnson,
King, Neugebauer, Conaway, Fortenberry, Schmidt, Thompson,
Rooney, Stutzman, Gibbs, Austin Scott of Georgia, Fincher,
Tipton, Southerland, Crawford, Huelskamp, DesJarlais, Gibson,
Hultgren, Hartzler, Schilling, Ribble, Peterson, Holden,
McIntyre, Boswell, Baca, Cardoza, David Scott of Georgia,
Cuellar, Costa, Walz, Schrader, Kissell, Owens, Courtney,
Welch, Fudge, Sablan, Sewell, and McGovern.
Staff present: Nicole Scott, Joshua Mathis, Patricia Barr,
John Goldberg, Josh Maxwell, Tamara Hinton, Matt Perin, John
Konya, Mary Nowak, Debbie Smith, Nathan Fretz, Clark Ogilvie,
Nona Darrell, Liz Friedlander, Faye Smith, and Jamie W.
Mitchell.
OPENING STATEMENT OF HON. FRANK D. LUCAS, A REPRESENTATIVE IN
CONGRESS FROM OKLAHOMA
The Chairman. This hearing of the Committee on Agriculture,
To review the impact of the EPA regulation on agriculture will
come to order.
Good afternoon. I want to thank the Administrator for being
here today. I know there are quite a few committees in the
Congress that have invited you to appear before them, and I
expect your popularity as a witness will not diminish any time
soon, Administrator. There is a reason the top priority for
nearly every Member of the Agriculture Committee is related to
the regulatory agenda of the Environmental Protection Agency.
The reason is simple: Many Members of this Committee believe
over the last 2 years, the EPA has pursued an agenda seemingly
absent of the consequences for rural America and production
agriculture. Your Agency is creating regulations and policies
that are burdensome, over-reaching, and that negatively affect
jobs and rural economies.
Just a few examples: EPA's proposed zero tolerance standard
for pesticides spray drift, initiating action to stiffen the
current regulatory standard on farm dust, which would make
tilling a field, operating a feed lot, driving a farm vehicle
nearly impossible, and an unprecedented re-reevaluation of the
popular weed control product atrazine. The EPA, in 2006,
completed a 12 year review involving 6,000 studies and 80,000
public comments.
Yet one of the first orders of business of the Obama
Administration was to start over after an article appeared in
The New York Times. In many instances, the Agency is ignoring
Congressional intent and looks almost to be trying to bully
Congress. Instead of simply administering the law, EPA
challenges Congress to pass more legislation that gives it more
authority. And if Congress does not, it will regulate anyway.
Farmers, ranchers, foresters alike, take great pride in
their stewardship of the land. When a family's livelihood
depends on caring for natural resources, there is an undeniable
economic incentive to adopt practices that enhance long-term
viability. While it may be popular among urbanites and
suburbanites to blame farmers and ranchers for environmental
concerns, I think that you can acknowledge that nobody cares
more about the environment than those who derive their
livelihood from it.
Rural America's economy is dependent on agriculture. The
EPA's regulatory approach has unjustifiably increased the cost
of doing business for America's farmers and ranchers. If the
EPA continues down this path, the only choice for many farmers
and ranchers will be simply to stop farming altogether.
Now, while there are many government regulations that are
seemingly good for the country, those regulations must be
developed in a manner that is mindful of the science and
economic consequences. There has been some recognition of that
phenomena as President Obama recently issued an Executive Order
ensuring that all regulations should have public participation
based on science and not prohibit growth, competitiveness, and
job creation. I look forward to finding out how the most recent
EPA actions meet this criteria.
And on the positive note, I would like to take this time to
acknowledge that there are recent examples of where the EPA and
this Committee have been able to work cooperatively in an
effort to remove unnecessary regulatory burdens. In particular,
I would like to commend you for the technical assistance you
have provided the Committee in our efforts to clarify the
regulatory authority for pesticide applications in or near the
Waters of the United States under FIFRA and not the Clean Water
Act.
I would like to call your attention to our shared concerns
regarding the seemingly dysfunctional consultation process for
pesticides under the Endangered Species Act. This is an issue
of great concern to the Committee and that we would hope to be
able to be work cooperatively with the EPA to address.
I anticipate that nearly every Member will wish to engage
you in a discussion of a specific area of concern. It is my
hope that this hearing will serve to open the door to a more
cooperative working relationship with the EPA generally, and
you specifically, Administrator.
I want to end this opening statement with one last
perception. Farmers and ranchers believe your Agency is
attacking them. They believe little credit is given to them for
all the voluntary conservation activities that they have
engaged in for years. This Committee is going to be an advocate
for those farmers and ranchers, and I will tell you the
Committee will look at every proposed rule from your Agency and
ask essentially three very basic questions: Is the EPA
following the law? Are you making regulatory decisions based on
sound science and data? And are you conducting adequate cost-
benefit analyses?
I thank you again for being here. I look forward to the
dialogue that develops today and into the future.
With that, I turn to the Ranking Member for his opening
statement.
OPENING STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE
IN CONGRESS FROM MINNESOTA
Mr. Peterson. Thank you, Mr. Chairman. Good afternoon. And
thank you for holding today's hearing. And I thank the
Administrator for being with us. I, too, am hearing a lot from
folks back in my district that are worried about what the EPA
is up to. I have met with producer groups from across the
country. And EPA regulations are nearly always on the top of
their agenda. With all due respect to the Administrator and her
testimony regarding EPA's commitment to science, transparency,
and the rule of law, farmers in the countryside just don't see
that. They see an out-of-control agency that doesn't understand
agriculture and doesn't seem to want to understand it. Today's
hearing gives the Agency a chance to respond to this
perspective.
For me, I keep hearing that EPA is only doing what the
courts are telling them to do. And I see that in some lawsuits.
The problem is that many cases aren't litigated to the point
where the court makes a ruling. Instead, there seems to be a
pattern of a lawsuit followed by an EPA settlement followed by
a policy change to comply with that settlement. This has been
going on far too often and many times without adequate public
disclosure. We have watched organizations use the courts to
twist laws against American farmers and agriculture production.
More and more we are seeing important policy decisions that
impact agriculture arise, not out of legislative process, but
from a litigation process where court decisions or secret
lawsuit settlement negotiations result in poor public policy
decisions.
If we don't work together to find a solution, producers
will likely continue being told how to operate by bureaucrats,
lawyers, and judges who don't understand agriculture. And, in
my opinion, this is not any way to make agriculture policy.
Policy should be developed in an open, transparent manner. This
is what we did in the 2008 Farm Bill. Unfortunately, this sue-
and-settle strategy keeps the process in the dark.
I started looking into this, and it is almost impossible to
find copies of settlement agreements that have been negotiated
by the EPA and their Justice Department counterparts. These
agreements frequently contain provisions that are critical to
agriculture and rural communities, but they are only coming to
light after the fact. This needs to be a transparent process.
The agreements need to be easily accessible to the public at
one location on the EPA's website. Any damages or costs
included in that settlement agreement must also be readily
available.
I think there is an opportunity for Congress to address
some of these problems. The challenge from the Agriculture
Committee's perspective, though, is that we have very little
jurisdiction over the regulatory issues that are the most
concern to our producers. I am hopeful today that there are
some areas such as the legislation we passed yesterday where we
can work with other committees to straighten out some of the
things that are going on.
I have already told Chairman Lucas that he has my
commitment that on this side of the aisle we will work with the
Republicans to make sure that we do things right. American
agriculture has traditionally led the way to recovery when we
have been in periods of economic stress--and we are seeing that
now. The last thing we need is a new set of regulations on the
segment of the economy that is actually working and producing
jobs and leading this recovery.
There are many issues under EPA purview that could have
direct impact on both agriculture producers and rural
communities. And so I look forward to the Administrator
updating us on what is and what is not happening on these
issues.
And, again, I want to thank the Chairman for holding
today's hearing and hope that we will be able to continue these
discussions--not just exploring EPA regulations, but
regulations coming from other Federal agencies--at future
hearings.
I yield back.
[The prepared statement of Mr. Peterson follows:]
Prepared Statement of Hon. Collin C. Peterson, a Representative in
Congress from Minnesota
Good afternoon and thank you Chairman Lucas for holding today's
hearing.
I'm hearing a lot from the guys in my district and they are really
worried about what the EPA is up to. I've met with producer groups from
across the country and EPA regulations are nearly always on the top of
their agenda.
With all due respect to the Administrator and her testimony
regarding EPA's commitment to science, transparency and the rule of
law, farmers in the countryside don't see that. They see an out-of-
control agency that doesn't understand agriculture and doesn't want to
understand. Today's hearing gives the Agency a chance to respond to
this perspective.
For me, I keep hearing that EPA is only doing what the courts are
telling them to do, and I see that in some lawsuits. The problem is
that many cases aren't litigated to the point where a court makes a
ruling. Instead, there seems to be a pattern of a lawsuit, followed by
an EPA settlement, resulting in policy changes to comply with the
settlement. This has been going on far too often and many times without
adequate public disclosure.
We've watched organizations use the courts to twist laws against
American farmers and agricultural production. More and more we are
seeing important policy decisions that impact agriculture arise not
from the legislative process, but from a litigation process where court
decisions or secret lawsuit settlement negotiations result in poor
policy decisions. If we don't work together to find a solution,
producers will likely continue being told how to operate by
bureaucrats, lawyers and judges who don't understand agriculture. This
is not the way to make agriculture policy.
Policy should be developed in an open and transparent manner;
unfortunately this ``sue-and-settle'' strategy keeps the process in the
dark. I've started looking into this and it's almost impossible to find
copies of settlement agreements that have been negotiated by EPA and
their Department of Justice counterparts. These agreements frequently
contain provisions that are critical to agriculture and rural
communities but they're only coming to light after the fact. This needs
to be a transparent process; the agreements need to be easily
accessible to the public at one location on EPA's website, and any
damages or costs included in the settlement agreements must also be
readily available.
I think there's an opportunity for Congress to address some of
these problems. The challenge from the Agriculture Committee's
perspective though is that we have very little jurisdiction over the
regulatory issues of concern to producers. I'm hopeful that there are
some areas, such as the legislation we passed yesterday, where we can
work with other Committees to straighten out some of the things that
are going on. I've already told Chairman Lucas that he has my
commitment that this side of the aisle will work with Republicans to
make sure that we do things right.
American agriculture has traditionally led the way to recovery
during periods of economic stress; and we are seeing that now. The last
thing we need is a new set of regulations on the segment of the economy
that is leading the recovery. There are many issues under EPA's purview
that could have a direct impact on both agriculture producers and rural
communities. I look forward to Administrator Jackson updating us on
what is and what is not happening on these issues.
Again, I thank the Chairman for holding today's hearing. I hope we
will be able to continue these discussions, not just exploring EPA
regulations but regulations coming from other Federal agencies, at
future hearings.
The Chairman. The Ranking Member yields back. The chair
would request that other Members' submit their opening
statements for the record so that the witness may begin her
testimony and ensure that there is ample time for all
questions.
[The prepared statements of Messers. Schilling, Tipton, and
Walz follow:]
Prepared Statement of Hon. Robert T. Schilling, a Representative in
Congress from Illinois
Chairman Lucas, Ranking Member Peterson, I want to thank you for
holding this hearing today to review the impact of EPA regulation on
agriculture. I'm proud to sit on the House Committee on Agriculture,
because it provides rural America with a voice that I believe is being
shut out more and more when it comes to the policies that affect
America's future.
As a small businessman I know that unnecessary and burdensome over-
regulations will not lead to job creation, but will put people out of
business.
It is often said that American farmers help feed a growing world
population and are constantly being asked to produce more on less land.
Farmers are also stewards of our land and soil. I believe that proposed
ideas and regulations by the EPA to regulate greenhouse gases, farm
dust, and even milk are the equivalent of asking farmers to produce
while having both hands tied behind their back.
In her testimony, EPA Administrator Jackson notes her ``profound
respect'' for the contributions of farmers. I believe that actions
speak louder than testimony. Mr. Chairman, the producers I talk to back
in Illinois believe the guidance and decisions coming out of EPA here
in Washington, D.C. represent an affront to middle-American and
agriculture as a whole. These farmers are left asking what EPA will
regulate next.
I hope that we make some progress today. I am especially interested
in hearing EPA's plans involving its jurisdiction under the Clean Water
Act. It is my belief that EPA should not be give total control to
regulate all Waters of the United States. EPA has no business
regulating ditches, farm ponds or puddles.
Again, I thank Chairman Lucas for holding this hearing and look
forward to hearing more about EPA's plans for U.S. agriculture, but
more importantly what U.S. agriculture has to say to EPA.
Robert T. Schilling,Member of Congress.
______
Prepared Statement of Hon. Scott R. Tipton, a Representative in
Congress from Colorado
Thank you, Chairman Lucas, for convening this hearing on the impact
of EPA regulation on agriculture. Thank you also to EPA Administrator
Jackson for coming today to speak before us and take our questions.
I've heard from many farmers and ranchers in Colorado and in the
third Congressional District that I represent, and I have real concerns
about the adverse effect that new government regulations will have on
agricultural producers in the coming years. The EPA is releasing
excessive, onerous rules one after another, which will increase
production costs, open up farmers to frivolous lawsuits, and make it
more difficult for producers to maintain their livelihoods. Further, as
rules, are proposed and go through rulemaking processes that stretch
out for months or even years, they create uncertainty for farmers and
ranchers about how government regulations will impact their future
ability to operate their businesses. This uncertainty discourages
capital investment, which is critical for creating jobs and growing the
economy.
This Administration is slowly but surely creating a regulatory
nightmare for the agricultural community. Agriculture may be a bright
spot in our struggling economy right now, but it will not remain so if
farmers and ranchers continue to be barraged from every direction with
these new rules. Farmers do more with less every day, and with a
growing world population, they face ever-increasing pressure to expand
production. Our country depends on agriculture, and if we make it
impossible for farmers to make a living growing foods and fibers, we
will all be adversely affected.
I doubt any of us here want to see American farmers pushed out of
business by onerous government regulations, so it's important that
continue to hold these hearings and examine the effect of regulation on
agriculture. Thank you again, Chairman Lucas and Ms. Jackson, for
providing us with this opportunity to discuss EPA regulations.
______
Prepared Statement of Hon. Timothy J. Walz, a Representative in
Congress from Minnesota
Chairman Lucas, Ranking Member Peterson, thank you for calling this
hearing to look at how our environmental protections intersect with our
agriculture industry. This is a very important matter to consider, and
I want to thank Administrator Lisa Jackson for taking the time today to
testify.
We have a commitment to feed the nation and feed the world. At the
same time, keeping our waterways and the air we breathe free of
pollutants so that we can drink clean water and live longer, healthier
lives for our generation and the generations to come is just as
important a commitment.
These two commitments do not have to be competing. I know our
farmers, with their children using the same pesticides, drinking the
same water, and breathing the same air, are just as concerned about the
environmental impacts of our farming techniques as any environmental
advocate. However, I have heard from a number of my farmers of the
concern they have trying to comply with many EPA regulations. They
wonder whether it will even be feasible to comply with such regulations
as proposed changes to coarse particulate matter (PM10)
under the Clean Air Act or if some of these regulations would be too
costly to a small family farm.
What we need to look at today is how our agriculture producers can
help and assist with keeping our environment safe while still ensuring
that our family farming businesses remain viable and productive. I
would like to have a constructive discussion and find ways we can work
with EPA's current policies without scrapping its ability to keep us
safe.
The Chairman. With that, I would like to welcome our
witness to the table, the Honorable Lisa Jackson, the
Administrator, U.S. Environmental Protection Agency,
Washington, D.C.
Administrator Jackson, please begin whenever you are ready.
STATEMENT OF HON. LISA P. JACKSON, ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.
Ms. Jackson. Thank you. Good afternoon, Chairman Lucas.
Good afternoon, Ranking Member Peterson. Good afternoon,
Members of this Committee. Thank you for inviting me to
testify. I am pleased to be here today.
I have great respect for the oversight role of Congress and
believe that this ongoing dialogue is central to the commitment
I have made to the American people to conduct EPA's business
transparently and with accountability. I also believe an
important part of that commitment is to dispel certain myths
about EPA's work and its impacts on agriculture. These
mischaracterizations are more than simple distractions. They
prevent real dialogue to address our greatest problems. And so
today I would like to spend a few minutes addressing some of
them directly.
Let me begin with one simple fact that I proudly embrace,
farmers and ranchers are an essential part of our economy. They
give us food, fiber, and fuel. The innovators in American
agriculture deserve great credit for significant steps they
have taken to protect the environment while feeding millions of
people. With that recognition in my mind, my direction at EPA
has been to establish a consistent dialogue with the
agriculture community, which is crucial to our work. This is
why I would like to take a moment to address some of the
mischaracterizations that have been at times unaddressed or
that need to be addressed again. As I am sure you would agree,
Mr. Chairman, facts matter. And we all have a responsibility to
ensure that the American people have facts and the truth in
front of them, particularly when fictions are pushed by special
interests with an investment in the outcome. Let me give you
just five examples.
One, is the notion that EPA intends to regulate the
emissions from cows, which is commonly referred to as a cow
tax. This myth was started in 2008 by a lobbyist and quickly
debunked by the nonpartisan independent group FactCheck.org.
And yet it still lives on. The truth is EPA is proposing to
reduce greenhouse gas emission in a responsible, careful
manner, and we have initially exempted agricultural sources for
regulations.
Another mischaracterization is the claim that EPA is
attempting to expand regulation of dust from farms. We have no
plans to do so. But let me also be clear: The Clean Air Act
passed by Congress mandates that the Agency routinely review
the science of various pollutants, including particulate
matter, which is directly responsible for heart attacks and
premature deaths. EPA's independent science panel is currently
reviewing that science, and at my direction, EPA staff is
conducting meetings to engage with and listen to farmers and
ranchers well before we even propose any rule.
Another example involves spray drift. While no one supports
pesticides wafting into our schools and communities, EPA does
not support a no-spray drift policy. EPA has been on the record
numerous times saying this, but the incorrect belief that EPA
is promulgating a no-drift policy persists. We have reached out
to the National Association of State Departments of Agriculture
and other key stakeholders. Working with them, we have been
able to identify critical issues, and we will continue our
efforts to resolve them.
Yet another mischaracterization is the false notion that
EPA is planning on mandating Federal numeric nutrient limits on
various states. Again, please let me be clear. EPA is not
working on any Federal numeric nutrient limits. We will soon be
releasing a framework memo to our regional offices that makes
it clear that addressing nitrogen and phosphorous pollution--
which is a major problem--is best addressed by the states
through numerous tools, including proven conservation
practices. The case of Florida is unique. The last
Administration made a determination that Federal numeric
nutrient standards were necessary in Florida. That required EPA
to develop such standards.
And finally is the notion that EPA intends to treat spilled
milk in the same way as spilled oil. This is simply incorrect.
Rather, EPA has proposed and is on the verge of finalizing an
exemption for milk and dairy containers. This exemption needed
to be finalized because the law passed by Congress was written
broadly enough to cover milk containers. It was our work with
the dairy industry that prompted EPA to develop an exemption
and make sure the standards of the law are met in a commonsense
way. All of EPA's actions have been to exempt these containers.
And we expect this to become final very shortly.
Now, contrary to the myths is the reality I spoke of
earlier. EPA is in close consultation with America's farmers
and ranchers. We have listened to their concern and made them a
part of the work we do. Let me give you one positive example
that I know is very important to this Committee. When EPA
proposed higher renewable fuels production mandates under RFS2,
we heard, again, through extensive public comments and direct
conversations the ethanol industry's concerns with the analysis
of greenhouse gas impacts, which EPA was conducting under a
requirement from Congress. We addressed their concerns and we
now have a rule that encourages vast innovation, respects the
needs of agricultural communities, and is expected to create
jobs and increase farmers' incomes by $13 billion annually by
2022.
Mr. Chairman, everyone in this room has the same desire--to
have safe water, air, and land for our children, and to do so
in away that maintains our economic strength. EPA will continue
to work with this Committee, as well as our partners in the
states and the agricultural community to achieve the goals we
have set together, and to serve the values we all share.
Thank you very much.
[The prepared statement of Ms. Jackson follows:]
Prepared Statement of Hon. Lisa P. Jackson, Administrator, U.S.
Environmental Protection Agency, Washington, D.C.
Good afternoon, Chairman Lucas, Ranking Member Peterson, and
Members of the Committee. I am pleased to appear before you today to
discuss EPA's mission to protect human health and the environment and
our interaction with the agriculture community.
In my meetings with leaders in the agriculture community and in my
meetings with Secretary Vilsack, I have indicated my profound respect
for the invaluable contribution that farmers make to our economy by
producing food, fiber, and fuel for our country and the world. I have
also noted the critical work that farmers are doing to protect our
soil, air, and water resources. At the same time, I am very much aware
that farmers operate under unique and challenging circumstances--small
margins, international competition, and the difficulties of operating a
small business--that complicate the task of making a living on the
land.
As a result of our meetings with the agriculture community--with
me, our senior leadership team and our regional staff--we appreciate
the extent of EPA's interaction with agriculture and the concerns of
farmers across the country.
When I became EPA Administrator, I made a commitment to using the
best available, peer-reviewed science, transparency, and the rule of
law as hallmarks for EPA's work under my tenure. In no other area of
EPA's work are those principles more important than in our work with
agriculture.
On issue after issue, we have seen the value of early and
substantial engagement with the agriculture community to ensure that we
fully understand the impacts of our actions. We seek opportunities for
communication, as we are doing currently on particulate matter
(PM10) and as we have previously done with public engagement
in development of the National Pollutant Discharge Elimination System
(NPDES) Pesticide General Permit. Our commitment to science has enabled
EPA to make strong decisions on issues ranging from the decision on the
Renewable Fuel Standard (RFS2) to the extensive work with the livestock
and poultry industries on the National Air Emissions Monitoring Study
(NAEMS). Finally, carefully following the laws that Congress has
enacted has enabled EPA to ensure public confidence in the nation's
food supply through implementation of the pesticide laws.
My testimony further illustrates how the Agency has followed these
key principles with specific examples from our pesticides, water, and
air programs.
Pesticide Regulation
EPA's Office of Pesticide Programs is charged with regulating
pesticides under the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA). EPA's
regulatory programs for pesticides under both laws rest on the same two
fundamental principles--basing decisions on best available, peer-
reviewed science and making our decisions through a process that is
transparent and open to everyone.
Under FIFRA, we must ensure that use of pesticides does not cause
``unreasonable adverse effects on the environment.'' When used
properly, pesticides provide significant benefits to society, such as
controlling disease causing organisms, protecting the environment from
invasive species, and fostering a safe and abundant food supply.
FIFRA's safety standard requires EPA to weigh these types of benefits
against any potential harm to human health and the environment that
might result from using a pesticide.
FIFRA generally requires that before any pesticide may be sold or
distributed in the United States, EPA must license its sale through a
process called ``registration.'' During registration, EPA examines
every pesticide product that is being lawfully marketed in our country.
In addition, FIFRA also requires EPA to reexamine previously approved
pesticides against current scientific and safety standards through a
program called ``registration review.'' Any changes to the use of a
pesticide identified through registration or registration review as
necessary for safe use appear on product labels.
In addition, under FFDCA, EPA sets ``tolerances'' (maximum residue
limits) for pesticides used on food or animal feed. EPA may establish a
tolerance for a pesticide residue in food or feed only if EPA finds
that there is a ``reasonable certainty of no harm'' from consumption of
the pesticide treated food and from other nonoccupational sources of
exposure.
EPA makes more than 10,000 different regulatory decisions about
pesticides every year. In 2010, EPA registered more than 700 new
pesticide products, approved products for 277 new uses, and registered
pesticides containing 24 new active ingredients (more than half were
low risk biopesticides or low risk conventional chemicals). In
addition, we approved hundreds of registration amendments, opened
dockets for scores of pesticides in registration review, and reviewed
thousands of notifications of other minor changes.
Over the past 30 years, EPA has developed a highly regarded program
for evaluating pesticide safety and making regulatory decisions. EPA's
reputation rests on our world renowned expertise in pesticide risk
assessment. Our approach to decision making is also widely considered
to be a model for transparency and openness. Using this approach, the
Agency makes decisions consistent with scientific information and
protective of human health and the environment.
Safe pesticide use makes an enormous contribution to our society,
particularly in the production of food and fiber. Innovation in
pesticide use has greatly increased agricultural productivity and
contributed to a predictable food supply and stable food prices. EPA
estimates that pesticides used to control various pests such as
insects, weeds, and fungus contribute billions of dollars per year to
agricultural production. In addition, maintaining a robust pesticide
regulatory system provides a high level of consumer confidence by
effectively policing the safety of pesticide residues in food.
Pesticides provide direct and indirect benefits for the millions of
people who use pesticides or purchase items on which pesticides have
been used. Some of the most dramatic examples occur under Section 18 of
FIFRA, where EPA may issue an ``emergency exemption'' to authorize the
temporary use of an unregistered pesticide to address an unusual pest
outbreak. For example, among other decisions last year, EPA approved
emergency exemptions to control zebra and quagga mussels in Arizona,
California, and Nevada; authorized 20 states to use two pesticides to
control varroa mites in honey beehives, a pest hypothesized to
contribute to colony collapse disorder; and allowed the emergency use
of the fungicide, propiconazole, on Florida avocados to address an
emerging disease that kills the tree and severely hurts the industry.
I want to discuss three topics concerning pesticide regulation in
greater detail. These topics--the Pesticide Registration and
Improvement Act, atrazine, and international cooperation--illustrate
the breadth of EPA's pesticide activities and how the Agency takes a
leadership role in working with stakeholders to find science based
solutions to contentious issues.
Pesticide Registration Improvement Act
The Pesticide Registration Improvement Renewal Act (PRIA 2)
provides an example for how user fees paid by the private sector can
help support vital regulatory activities. EPA's pesticide regulatory
programs are funded by a combination of appropriations and user fees.
Under PRIA 2, the 2007 reauthorization of PRIA which is in effect from
October 1, 2007 to September 30, 2012, entities seeking EPA approval to
sell or distribute pesticide products must, in most cases, pay a fee
before the Agency will process their applications. The amount of the
fee depends on the type of application and the type of entity. For
example, EPA charges lower fees for ``me too products'' than for
entirely new pesticides. Small businesses pay reduced fees, and PRIA 2
exempts government and government-supported organizations like the
Interregional Research Project No. 4 (IR-4), from application fees.
PRIA 2 was developed by a group of representatives from the
pesticide industry, their trade associations, and public interest
groups, provides benefits for interested stakeholders. For the
pesticide industry, PRIA 2 requires EPA to make decisions on
applications within a mandated timeframes. Before PRIA, because of
limited resources, the Agency could not process all of the applications
it received in a timely fashion. Large backlogs developed, and
applicants could not predict when the Agency would make a decision.
Pesticide companies had to establish priorities for which of their
applications EPA would review first. With the additional resources
provided by PRIA, however, the Agency can now process new applications
in a timelier manner. In fact, since the start of the PRIA user fee
program, EPA has met the timeframes for more than 99% of PRIA
applications. With this kind of consistency in EPA's review of
registrations, pesticide companies can develop more accurate business
plans for marketing their products.
Pesticide users also benefit from the more rapid approval of more
new pesticide products. Since PRIA became law, EPA has seen an increase
in the number of new pesticides being submitted, indicating that PRIA
may have encouraged increased research and development. Under PRIA, the
Agency has also seen an increase in the approval of pesticides for
``minor uses'' to meet the pest control needs of farmers who grow minor
crops--primarily fruits, vegetables, and nut crops. Further, by law
some of the PRIA 2 fees go to support improved safety standards for
agricultural workers and to provide pesticide safety education for farm
workers and farm worker families. Finally, PRIA 2 sets aside a portion
of the fees to increase funding for grants that improve understanding
of Integrated Pest Management and develop new tools to reduce pesticide
use.
Society and the environment also benefit from PRIA 2. A number of
the new pesticides receiving approval under PRIA 2 are safer than the
previously approved products which they can replace. In addition, PRIA
2 reauthorized maintenance fees to support EPA's registration review
program. Under FIFRA, the Agency must reevaluate all previously
registered pesticides at least every 15 years to make sure that
products in the marketplace can still be used safely. The registration
review program makes sure that, as the ability to assess risk evolves
and as public policy and pesticide use practices change, all registered
pesticides continue to meet the FIFRA statutory standard of no
unreasonable adverse effects.
Atrazine
The current scientific review of the human health and environmental
effects of atrazine, a widely used herbicide, shows EPA's commitment to
basing our regulatory decisions on the best available scientific
information. In 2003, EPA conducted a review of atrazine and determined
that, based on the science available at that time, atrazine was not
likely to adversely impact human health or cause unreasonable impacts
on the environment when used consistent with new labeling restrictions.
As a condition for continued registration, the Agency required the
registrants of atrazine to confirm the effectiveness of risk mitigation
measures for protecting drinking water resources and aquatic life.
Specifically, we required the registrants to conduct extensive
monitoring of community drinking water systems and vulnerable
waterways.
In the nearly 8 years since that decision, nearly 150 new
scientific studies have been conducted on the human health effects of
atrazine. In addition, monitoring data from a variety of sources,
including the registrants' studies discussed above, of atrazine in both
drinking water sources and other bodies of water. EPA determined it is
appropriate to look closely at this new research and to ensure that our
regulatory decisions about atrazine reflect the best available science
and continue to be protective.
To ensure our assessment continues to be thorough, scientifically
based, and fully transparent, we are consulting the FIFRA Scientific
Advisory Panel (SAP), a Federal advisory committee charged with
providing independent, expert peer-review of scientific issues
involving pesticides. We have held four public SAP meetings over the
last year related to our review of atrazine:
November 3, 2009--EPA presented its plan for the atrazine
re-evaluation to the SAP;
February 2-4, 2010--EPA presented and sought scientific
peer-review of its proposed plan for incorporating epidemiology
studies into the atrazine risk assessment;
April 26-29, 2010--EPA presented and sought scientific peer-
review of its evaluation of atrazine's effects based on
experimental laboratory studies, and the sampling design
currently used to monitor drinking water in community water
systems; and
September 14-17, 2010--EPA presented and sought peer-review
of its evaluation of atrazine's non-cancer effects based on
experimental laboratory studies and epidemiology studies. This
review included new experimental laboratory data since the
April 2010 SAP meeting.
Our examination of new health effects studies will still need to
consider the upcoming results from the National Cancer Institute's
epidemiological Agricultural Health Study (AHS) evaluating the
potential association between atrazine and cancer risk. We expect to
take these results, along with other epidemiological and laboratory
animal studies, to the SAP later this year. At the conclusion of EPA's
assessment of atrazine's human health effects, the Agency will ask the
SAP to review atrazine's potential effects on amphibians and aquatic
ecosystems.
EPA's International Cooperation in Pesticide Regulation
Our international activities show how EPA's leadership role seeks
to efficiently use resources and contributes to a predictable and
protective global regulatory framework that facilitates trade while
improving environmental protection. The ability to work effectively in
an increasingly complex environment is a key to maintaining U.S.
competitiveness in agricultural production, biotechnology, and
development of needed means of pest control, as well as in promoting
and enhancing food safety and environmental protection. The field of
pesticide regulation is a striking example. In recent years, we have
all experienced the globalization of our food supply due to the
expansion of world agricultural trade. Trade in pesticides is also
increasing at a rapid pace.
As a major exporter and importer, the U.S. seeks to promote
economic growth through its work with other countries and international
organizations to encourage greater harmonization of pesticide
requirements. These efforts strengthen public health and environmental
protection at home and abroad, promote the wider availability of pest
control technologies that U.S. agricultural producers rely on to
maintain high levels of productivity, and help ensure the availability
of a safe, varied, abundant and affordable food supply for U.S.
consumers, and its partners in trade in agricultural and food products.
For example, we will not realize expected benefits from registering
new, often safer pesticides for use in the U.S. unless the necessary
clearances are in place in countries that are important export markets
for U.S. growers. Therefore, we work through the Codex Alimentarius (a
joint food standards program of the Food and Agriculture Organization
of the United Nations and the World Health Organization) to expedite
the establishment and review of internationally recognized residue
limits for pesticides in food. Many countries rely on the Codex maximum
residue limits (MRLs) as their own national standards, and others
(including the U.S.) strive to harmonize with Codex whenever possible.
Harmonized MRLs facilitate compliance, reduce the likelihood that
food with illegal residues will be imported into the U.S., and promote
trade in safe agricultural products. We also work with other U.S.
agencies to educate trading partners about the requirements of the U.S.
food safety system and to work toward greater harmonization of
pesticide regulation in ways that enhance the scientific basis of
regulatory decision-making and improve efficiency, thereby saving
government and private sector resources.
Other areas where international cooperation has been important to
our pesticides program include:
Working with partners in the Organisation for Economic Co-
operation and Development to harmonize test guidelines, data
requirements and application formats to conserve scientific and
regulatory resources;
Harmonization of risk assessment and risk management
approaches, e.g., development of an MRL calculator tool that
makes it more likely that countries working from the same data
will reach similar regulatory results; and
Work sharing and joint reviews. When we work together on
pesticide issues, we benefit from sharing scientific expertise
and review burdens with our regulatory counterparts and
decrease the likelihood that pesticide regulations will become
trade irritants.
Collectively, these efforts are leading to ever more efficient use
of scarce public and private sector resources to ensure that pesticides
are being used safely, while at the same time providing businesses a
more predictable and stable regulatory environment worldwide so they
can expand economic opportunities.
Water Quality
EPA recognizes that collaboration with states, farmers, rural
communities and USDA can be particularly effective in achieving
important improvements in water quality. Our work on the Chesapeake Bay
and on the Mississippi and Atchafalaya River Basin are two examples of
how those collaborations can work.
Chesapeake Bay
One of EPA's major efforts on water quality protection in the past
25 years is the development of a comprehensive, integrated plan for
restoring the Chesapeake Bay. We developed this plan in consultation
with the agriculture community, close collaboration with the Chesapeake
Bay jurisdictions (the six Bay states and the District of Columbia),
and with assistance from Federal agency partners. With the support of
an Executive Order, EPA worked with other Federal agencies,
particularly USDA, to develop a Federal strategy for protecting and
restoring the Chesapeake Bay watershed. The strategy reinforced EPA's
and USDA's recognition that maintaining the viability of agriculture is
an essential component to sustaining ecosystems in the Bay. It also
emphasized the agencies' commitment to strong partnerships and
collaboration with states and local governments, urban, suburban and
rural communities, and the private sector to achieve environmental
objectives for the Bay. In this strategy, and in the actions EPA and
USDA are pursuing under the strategy, the agencies acknowledge the
enormous contribution that farmers are making to improve Bay water
quality.
Developing the Chesapeake Bay Total Maximum Daily Load (TMDL) was
truly a collaborative effort. EPA worked closely with the Bay
jurisdictions during 2009 and 2010 to help them develop and improve
Watershed Implementation Plans (WIPs) to inform and support the
Chesapeake Bay TMDL. In those plans, the states identified how they can
best achieve the nutrient and sediment reductions called for under the
TMDL. In developing the Executive Order strategy and the WIPs, EPA and
its partners held nearly 400 public meetings with the agricultural
community and other interested stakeholders. Using input from those
meetings, the state developed WIPs recognize that suburban and urban
communities as well as the agriculture sector will all need to achieve
pollution reductions to restore the Bay and rivers. As a result of the
hard work and commitments of the individual jurisdictions, there are
now feasible and credible WIPs established to implement the nitrogen,
phosphorus, and sediment reductions necessary to attain state water
quality standards and restore water quality in the Bay.
To help achieve pollutant load reductions, EPA combined resources
with USDA to award more than $5 million in grants this past fall to
assist farmers in adopting conservation practices in the region.
Mississippi and Atchafalaya River Basin
In the Mississippi and Atchafalaya River Basin, EPA and USDA are
working together to demonstrate success in water quality improvement.
We are jointly collaborating to provide monitoring support for USDA's
Mississippi River Basin Initiative (MRBI) as well as broader efforts to
use EPA section 319 funds (and other available funds) in coordination
with USDA programs to engage creatively in work with communities and
watersheds to achieve improvements in water quality.
EPA, USDA and USGS are collectively working together to focus on
Mississippi River water quality goals. For example, the agencies are
working to identify where NRCS MRBI projects can be funded and
implemented in a way that supports the implementation strategies set
forth in existing section 319 watershed plans, TMDLs, and other state
plans. The agencies are also targeting their monitoring investments to
best assess water quality trends and demonstrate water quality
improvements. In these targeted areas, EPA Regions are coordinating
with the state NRCS offices, agencies, and USGS at the local level to
ensure meaningful stakeholder involvement and commitment to full
implementation.
Air Quality
National air quality issues are integrally related to agricultural
activities. Particular areas of focus include coarse particulate
matter, boiler standards, animal feeding operations, and the allowable
level of ethanol in gasoline. EPA's actions in these and other areas
are described below.
Coarse Particulate Matter
The Agency recognizes that the review of the air pollution
standards for coarse particles--called PM10--has prompted a
great deal of concern in the agriculture community in recent months.
EPA's national air quality standards, including our PM standards, are
not focused on any particular industry or activity; rather, they set
the level of a pollutant allowed in the outdoor air nationwide. EPA has
not issued a proposal on PM10 and has not made any decisions
about what to propose.
EPA has reached out to rural communities to hear their perspectives
on PM10 standards. EPA has held five meetings with
stakeholders in several regions of the country. Initial reports
indicate that these have been very well attended and much appreciated--
they have increased understanding about EPA's work and the farm
community has provided useful insights that will help inform our
deliberations. That information, along with EPA's scientific and
technical assessments and the recommendations of our independent
science advisors--the Clean Air Scientific Advisory Committee--will be
considered as EPA begins the process of assessing what standards to
propose to ensure that we provide the public health protection that the
law requires.
Boiler MACT Rules
On February 21, 2011, EPA issued final standards for boilers and
certain incinerators that will achieve significant public health
protections through reductions in toxic air emissions, including
mercury and particulate pollution, while cutting the cost of
implementation of these standards by about 50 percent from the proposed
rules issued last year. EPA estimates that for every dollar spent to
cut these pollutants, the public will see between $10 to $24 in health
benefits, including avoiding between 2,600 and 6,600 premature deaths,
preventing 4,100 heart attacks and averting 42,000 asthma attacks per
year once they are fully implemented.
The Agency's handling of this rule is a compelling example of how
public comment and new information are used and can be especially
valuable in crafting a sound regulation. EPA received more than 4,800
comments from businesses and communities across the country in response
to the proposed rules, including the agricultural community. As a
result of this feedback, EPA revised the draft standards to allow
additional flexibility and cost effective compliance. Among other
things, we believe the final standards are sensitive to the needs of
rural America, particularly given the role that biomass plays as fuel
in rural areas. Furthermore, EPA is working with the Departments of
Energy and Agriculture to provide facilities affected by the standards
with technical assistance. In particular, together with USDA, we will
be reaching out to facilities that have boilers that burn biomass to
make sure that they understand the regulation, its cost- and energy-
saving features, and the benefits that can accrue to boiler owners as a
result.
Animal Feeding Operations Monitoring Study
In 2005, EPA and the animal feeding operations industry signed a
voluntary compliance agreement that resulted in the first nationwide
study of its kind for animal feeding operations. That study, the
National Air Emissions Monitoring Study, was funded by industry and
conducted by Purdue University with EPA oversight. The monitoring
conducted under the study has been completed, and the data are
available to the public via the web. EPA will use the data to develop
improved methodologies for estimating emissions from animal feeding
operations. Twenty four facilities in nine states made their operations
available for monitoring and worked closely with researchers, industry
experts and EPA throughout the study period. EPA will also use
information it has received in response to a ``Call for Information''
issued in January 2011 seeking data from other monitoring studies of
animal feeding operation emissions. We will make the draft
methodologies available for public review and comment on a rolling
basis in the near future.
E15
Another important issue to the agricultural community has been
action on the request by more than 50 ethanol producers and other
supportive groups to allow E15 to be sold for use in gasoline powered
vehicles and equipment. Under the Clean Air Act, a fuel that is not
substantially similar to the fuel used to determine compliance with
emissions standards must obtain a waiver before it can be sold. EPA may
grant a waiver if there is sufficient information to show that the fuel
will not cause or contribute to failures to meet applicable emission
standards. In acting on the waiver request for E15, we provided an
extended period for public comment and timely access to Department of
Energy (DOE) test results on the impact of E15 on exhaust emissions of
model year 2001 and newer cars and light trucks.
After considering all of the available information, we granted
partial waivers that allow E15 to be sold for use in model year (MY)
2001 and newer cars and light trucks. In 2011, there are more than 150
million MY2001 and newer vehicles that could use E15. These vehicles
represent more than 74 percent of gasoline consumption. By 2014, we
project E15 could be used in more than 187.3 million vehicles,
representing 85% of fuel consumption.
We are now in the process of completing a rule that will establish
national labeling, transfer document and survey requirements for E15 as
it enters the market. As part of the rulemaking process, we held a
public hearing and provided a 60 day public comment period. We expect
to issue a final rule in the next few months. Under the Clean Air Act,
E15 must also be registered before it can be sold. We recently received
emissions and health effects information to support a registration
application. We expect to complete our review of that information in 2
to 3 months.
Additional EPA Involvement With the Agricultural Community
In addition to the examples highlighting EPA's pesticide, water,
and air programs, there are many other EPA actions underway
substantively addressing agricultural issues, including:
Conducting outreach to livestock farmers in agricultural
areas such as the Shenandoah Valley to improve their
understanding of EPA requirements and programs;
Planning to issue a final rule amending the Spill
Prevention, Control, and Countermeasures (SPCC) rule to exclude
milk and milk product containers from the SPCC regulatory
program, which has been transmitted to the Office of Management
and Budget for review;
Listening to producer concerns and as a result, extending
the compliance period to provide time for educational and
outreach efforts to be carried out for farmers who are affected
by SPCC; and
Providing significant assistance in the development of
watershed plans through the 319 program and in the renovation
of rural water systems though the State Revolving Fund (SRF)
program.
Conclusion
I am fully aware that there are complex and difficult issues that
we need to work on with the agriculture community and this Committee.
You have my commitment that we will continue to rely on science,
transparency, and the rule of law as we work together. And you have my
commitment to engage in discussion early and often to increase
understanding, improve our knowledge and create a stronger working
relationship in support of a strong farm and rural economy and a
healthy environment--I believe that they can and should go hand in
hand.
I appreciate the opportunity to be here today. I look forward to
continuing our work with you and I am pleased to answer any questions
you might have.
The Chairman. Last Wednesday, the Fourth Circuit Court of
Appeals ruled on a Biological Opinion--a BioOp--issued by the
National Marine Fisheries Service relating to pesticide re-
regulation decisions in a final Agency action and therefore
reviewable in district court. In light of this decision, what
options are available to the EPA regarding your timeframe for
implementing the reasonable and prudent alternatives under the
three Biological Opinions you have received?
Ms. Jackson. Thank you, Chairman. Yes, we are analyzing
that decision with the Department of Justice because we do
believe it may have some impact on our options, moving forward,
on Biological Opinions. That issue, as you mentioned in your
opening statement, is a significant one for agriculture, and
for our pesticide program, which relies on Biological Opinions
to make its registration and labeling decision, so important in
rural America and in agriculture.
Just today, I signed a letter charging the National Academy
of Sciences to review certain technical and scientific issues
in Biological Opinions, because they have come to be of great
import in future decisions, moving forward.
The Chairman. Administrator, you mentioned that you are
very much aware that farmers and ranchers operate under unique
and challenging circumstances. Apart from having outreach
meetings, how has that awareness been incorporated into the
decision-making process at your Agency?
Ms. Jackson. Well, outreach means certainly the beginning,
and of course, the public comment process, which is open to
anyone when we put out a rule, is very significant as well. I
gave one example in my opening testimony, which is probably the
most dramatic one. The original proposal under the RFS2 for
ethanol did not find that as a biofuel which would qualify for
the credit under EISA. Through public comment, through hard
work with USDA, through working with modelers, those numbers
changed significantly enough that on adoption of that rule EPA
essentially reversed that opinion. Our work on the pesticides
general permit is another example of significant outreach to
deal with a mandate that we received from the courts.
The Chairman. Administrator, you mentioned dust and spray
drift and nutrients. Do you believe that your Agency has the
authority--you say you are not going to--but do you believe
your Agency has the authority to regulate those issues?
Ms. Jackson. Yes, dust via the Clean Air Act under the
particulate matter standards. You mentioned nutrients under the
Clean Water Act, certainly. And I forgot the third one.
The Chairman. Spray drift issue.
Ms. Jackson. Certainly through FIFRA labeling, which is
where this issue was raised, EPA's decision on what to put on
the label has a tremendous impact on that sector.
The Chairman. But you acknowledge you believe in your role
that you have existing Federal authority to regulate those
things. Even though you say at the present time you are not in
the process of preparing rules to regulate them, you do say you
have the authority, you believe.
Ms. Jackson. We regulate dust now under the Clean Air Act,
under the 2004 standards. Nutrient pollution is certainly
regulated under the Clean Water Act, generally by the states.
But EPA standards and the total maximum daily load process has
a lot to do with that.
The Chairman. I think, Administrator, you put your thumb
right there on the issue. The folks out in the countryside
believe that you believe you have the authority. Their concern,
more or less, is it is just when and to what degree will you
regulate. And that is what they brought to our attention, along
with the concerns about sound science and economic impact, and
whether the results of these decisions will--the effect on them
will be factored into the decision-making process.
With that, I turn to my colleague, the Ranking Member, for
his questions.
Mr. Peterson. Thank you, Mr. Chairman. I am interested in
learning more about how the EPA handles legal action brought
against it. What factors do you use in determining whether or
not to settle with a litigant or petitioner?
Ms. Jackson. EPA makes a case-by-case judgment, sir. We
have to look at several factors. The requirements of the law,
most importantly. Legal risk is always a big factor in
determining whether to continue the litigation or to settle a
case. And the appropriateness of rulemaking or other action to
address the party's claims. Sometimes we don't have the
authority or our rulemaking is not an efficient method of
addressing a claim.
Mr. Peterson. At what point does the Department of Justice
get involved in this? Do you disagree with them sometimes? And
if you do, how do you proceed and who has the final say?
Ms. Jackson. Well, certainly we work in concert with the
Department of Justice. And the Department of Justice acts as a
check, if you will. We cannot move forth on settlement without
concurrence and consultation with the Department of Justice.
Mr. Peterson. Do you recommend to them to settle or do they
recommend to you or how does that work?
Ms. Jackson. Oftentimes, it is a result of staff making
some recommendations. I can get for you, sir, individual
examples. But I would imagine that oftentimes, EPA lawyers meet
with Justice Department, look at the merits of a case, and
would recommend a settlement and ask for their concurrence.
Mr. Peterson. Well, I have a number of questions that I am
going to send you about trying to understand this. I would like
to know what settlements have been made since you took over as
Administrator and whether there has been any rulemaking that
has taken part in that.
One of the things, maybe, with the limited time, I would
like to focus on this Waterkeeper settlement. Last May, you
announced a settlement with the Waterkeeper Alliance, which I
think is some kind of outgrowth out of the Sierra Club, Defense
Fund. And I have some other questions about how some of these
groups qualify to get the government to pay their legal fees
and whether we need to look at that in the future, if they
legally can do this.
But in this case they apparently sued and then some
livestock groups sued and there was a settlement made. But
apparently, you guys negotiated with the Waterkeepers but you
didn't negotiate with the agriculture groups. And then there
was a settlement. Again, who made the decision not to include
those ag groups? The settlement included an agreement to pay
$95,000 in attorneys fees and costs. Do all of the EPA
settlement agreements contain provisions for payment of
attorney fees and how do you determine that?
Ms. Jackson. Mr. Peterson, we are happy to get you specific
answers for the record to all those questions. In general, I
will simply say that Congress has imposed a vast array of
requirements on EPA and we are frequently sued by environmental
and also other organizations under statutes claiming that EPA
has failed to take an action in a timely manner or that we have
been unreasonably delayed. And in many cases, the remedy that
we are demanded under that lawsuit is to undertake rulemaking.
Mr. Peterson. What about if the lawsuit is not litigated
and you just settle? Then all of a sudden you are basically
doing a settlement that is requiring you to do rulemaking. We
didn't authorize it or probably agree with it.
Ms. Jackson. Well, we look at what the law requires us to
do. One of the questions is whether you would lose if you went
to court and whether we would be best served by settlement
early and trying to agree on a schedule for rulemaking.
Oftentimes, that rulemaking is overdue that we can live with
rather than have the courts impose one on us. And we still have
to pay court fees that would be much higher at the end of being
on the losing end of a lawsuit. So the litigation risk is a
very important consideration.
Mr. Peterson. Do you make that decision or does the
Department of Justice?
The Chairman. By unanimous consent, I ask that the Ranking
Member have 2 additional minutes. Seeing no objection, 2
additional minutes.
Ms. Jackson. We would make that together. Depending on the
nature of the lawsuit, that can be a quick decision because
oftentimes in these lawsuits it is fairly easy to know whether
or not they would prevail.
Mr. Peterson. I have this area that floods every year. We
are going to flood again this year. And I don't know how many
hundreds of millions of dollars this has cost us. The reason we
haven't been able to ever do anything about this is
environmental groups have basically stopped us. These are folks
that are not from the area. They bring nothing to the table.
And they have cost the taxpayers I don't know how many hundreds
of millions of dollars.
So maybe the problem is that we have just let these laws--
we don't know what we are doing; and that we have given these
folks too many tools to muck up the whole system. Maybe we need
to go in and review those things. But you say that we are
requiring you to do this. Well, I have seen this firsthand in
my district. That is the kind of thing they say to me there.
Frankly, in the case of the legislature back in Minnesota that
I used to serve in, I mean some of this stuff was foisted upon
us and we didn't know what was going on.
So this Committee maybe needs to look at reviewing some of
this stuff, or some of these other committees as well, so that
we don't set up a system that allows this to go on.
Last, I can't find on your website these settlements. I can
find it on some other organization's websites. But do you make
this information public? I have heard some complaints that they
can't find the information on these settlements. They can't
find out how much it was and who got paid what for attorney
fees and so forth. Is that something that you are making public
immediately when you do this settlement?
Ms. Jackson. Well, most of our settlements are required by
law to go through public comment. But to your specific
question, sir, if it is in one place, I would like to get back
to you for the record, because I don't know the answer off the
top of my head.
The Chairman. Would the gentleman yield?
Mr. Peterson. I will yield.
The Chairman. I think the Ranking Member has a very good
point here. With his agreement, I think the Committee should
ask in writing today for a list of all these.
Mr. Peterson. Mr. Chairman, I have another list of a couple
of pages of things that I would like to submit with that.
The Chairman. We are going to send you a wonderful letter,
Administrator.
The gentleman's time has expired.
I now turn to the gentleman from Virginia for this
questions.
Mr. Goodlatte. Thank you, Mr. Chairman. Thank you for
holding this important hearing. Ms. Jackson, thank you for
participating. As you may know, I have an interest in the EPA's
regulations related to the Chesapeake Bay. As you may also
know, the overwhelming majority of the Members of this
Committee voted to cut off the funding for the EPA's
implementation of the TMDL.
I would like to ask you for some clarification regarding
your testimony. In your testimony you stated: ``The EPA worked
closely with the Bay jurisdictions to help them develop and
improve watershed implementation plans.'' You also call these
plans ``state developed.'' I would like you to clarify a few
points for the Committee.
First, in November of 2009, the EPA sent a letter to the
watershed states requiring them to draft watershed
implementation plans, is that correct?
Ms. Jackson. That sounds right, sir, yes.
Mr. Goodlatte. If the plans were not developed, the letter
stated that the EPA would take ``appropriate independent action
or consequences.'' Is that correct?
Ms. Jackson. I believe the letter you are referring to does
probably say that. I don't have it in front of me.
Mr. Goodlatte. I have a copy here. We will share that with
you if you would like to see it after the hearing. If that is
correct, then there was not an independent decision by the
state to write the plans as they were written, but it was a
requirement by the EPA that they write them. Is that not
correct?
Ms. Jackson. Yes, sir, in response to a lawsuit from the
Chesapeake Bay Foundation because the cleanup of the Bay was
not proceeding as it should under Federal law.
Mr. Goodlatte. The fact of the matter is there are also
lawsuits now brought by the Farm Bureau because they have
contended the EPA has exceeded its authority. And there is a
group of 16 communities in the eastern part of Virginia, not in
my district, that are contemplating a lawsuit as well because
they believe the EPA has exceeded their authority.
But what I would like to follow up on is the notion that
these plans are state developed. I know my state and others did
a lot of work to draft these plans to fulfill this requirement.
But isn't it true that the EPA used the threat of a ``Federal
backstop'' or ``consequences'' to compel the states to include
certain provisions in their plan?
Ms. Jackson. It is true that EPA had the authority we
believe to backstop any state plan that didn't make meaningful
steps to reduce pollution such that we would see improvements
in the Bay.
Mr. Goodlatte. We could debate how much improvement has
taken place already. Farmers would tell you that they have
reduced the amount of nitrogen and phosphorus very, very
substantially, some say by as much as 50 percent, under the
voluntary state-managed programs of the past. But in fact, to
your point, the first time the plans were submitted to the EPA,
the EPA rejected all of the states' plans. Can they really be
called state-developed plans when the EPA rejected every
states' plans at one point in this process?
Ms. Jackson. Sir, I had several conversations with the
Governor of Virginia, and I know my staff was in constant
contact with him. One of the folks working on this worked for
the Commonwealth of Virginia on the Chesapeake Bay. And, yes,
the plans were developed by the state. It was EPA's role in
looking at this regional problem that touches many states.
Mr. Goodlatte. EPA rejected the state's plan and said the
EPA would backstop or take Federal action if the state did not
alter the plan.
Ms. Jackson. EPA pointed out realistically where it thought
the plan would not achieve the reductions necessary to be able
to really reduce pollution and restore Chesapeake Bay.
Mr. Goodlatte. As part of the EPA's actions in the Bay, in
February of last year the EPA sent five poultry processors in
my district information requests, citing section 308 of the
Clean Water Act. The letter stated that it was mandatory for
the processors to respond and supply the EPA with specific
information about the individual independently owned farms that
the processors contract with.
Can you explain the authority EPA has to request
information about individual small farmers who have contract
arrangements with processors, but are not owned or operated by
the processors? While the processors may be a permitted
facility under the Clean Water Act, independent small farms
that processors contract with are not.
Should this Committee conclude that the issuance of the 308
letters is an attempt by the EPA to try to use a processor's
permit to regulate independent small farms?
Ms. Jackson. No, you shouldn't conclude that, sir. But what
you should conclude is that we have heard over and over from
small farms that feed into these big processors that they are
working under contract. And if they need more money----
Mr. Goodlatte. There is no question they are working----
Ms. Jackson. It is actually an attempt----
Mr. Goodlatte. What authority does the EPA have to request
information about individual small farms? They are not the
processor.
Ms. Jackson. EPA is trying to work with the processors to
make them understand that their relationship----
Mr. Goodlatte. The impression, I guess, from the processors
is not that they are being told to work with. They were issued
subpoenas to provide the information.
Ms. Jackson. I don't believe they were subpoenaed, sir. I
believe they were sent 308 letters.
Mr. Goodlatte. What's your authority under section 308 to
require processors to give you information about small
individual farms?
Ms. Jackson. We would like processors to realize that how
they treat the small farmer----
Mr. Goodlatte. That is not the question.
Mr. Chairman, I would ask the Administrator be asked to
answer the question.
What is your authority under section 308 to require
processors to give you information about farms that are not
owned by the processors?
Ms. Jackson. Section 308 of the Clean Water Act gives EPA
fairly broad information-gathering authority which can be used
for regulatory purposes.
The Chairman. I think you have your answer, sort of.
Mr. Goodlatte. Sort of, Mr. Chairman. And I would strongly
dispute the authority of the EPA to do that. I will have more
on that later. Thank you.
The Chairman. The chair turns to the gentleman from
Pennsylvania, Mr. Holden.
Mr. Holden. Thank you, Mr. Chairman.
Ms. Jackson, following up on Mr. Goodlatte's discussion
about the Chesapeake Bay, as you are aware, in the last farm
bill, this Committee had a $500 million investment in
conservation practices for the Bay region. That was not easy to
do. It was a carve-out for the region of the country. I
remember Mr. Conaway asking a question about the validity of
that program. And when we explained, Mr. Goodlatte and I, that
we needed to do this because agriculture wanted to be part of
the solution to the Bay problems, Mr. Conaway supported it, as
did everyone else on this Committee, and it became the law of
the land.
The ink was not dry on the farm bill. USDA had no time at
all to implement any of these programs and we get hit with this
Executive Order. I think you understand the frustration that
Mr. Goodlatte and myself and our producers feel. And we don't
know how they are going to comply with this. And you talked in
your opening statement about transparency in the EPA's process.
And I understand that the load allocations outlined in the
Executive Order are based upon assumptions that EPA kept very
internalized. And we need to shed some light in this process.
Do you intend to make public the process EPA used to determine
the load allocations? And can you tell us who was involved in
determining the allocations? And why did you choose to keep
this internalized instead of publicly released in a peer-
reviewed process, as usual?
Ms. Jackson. The watershed models that EPA uses to
determine load allocations to the Bay are not secret. We have
worked on those models for quite some time. The Department of
Agriculture has their own assessment project and models that
they use for their CREP program, sir.
Mr. Holden. So you are telling me when you were enforcing
or administering the Executive Order, you had consultation with
producers?
Ms. Jackson. We had consultations with the state regulatory
authorities because that is who has to implement the TMDLs--the
pollution diet numbers and load allocations.
Mr. Holden. Don't you think you should talk to people who
are going to have to live by those rules?
Ms. Jackson. Well, certainly. That is part of our work if
we are establishing a regulation. But the model for the Bay is
simple. It gives an allotment to each state and then states
come up with plans, watershed implementation plans, that they
develop, and they say how we are going to meet their diet, how
they are going to meet their allotment. And EPA's job and our
best purpose, respectfully, is to try to work with states, to
let states be in the lead, but to make clear we have an
obligation under law as well to ensure that they make
reasonable efforts.
We have also worked very hard with USDA and support putting
resources into agricultural sectors in the Bay region to try to
continue to help them. I would agree that agriculture has made
some real strides in reducing nutrient pollution. I would also
respectfully state there is more work to do.
Mr. Holden. I don't think anyone in the process would
describe it as simple--that I have talked to. You said you have
examined the lawsuits case by case, Ms. Jackson. If you can
tell me, what is the status of the American Farm Bureau and the
Pennsylvania Farm Bureau suit for implementation of the Bay
program?
Ms. Jackson. I know that the American Farm Bureau has sued
us to stop implementation of the program. In terms of the exact
status of the suit, I don't know if we have entered discovery
yet.
Mr. Holden. Moving on to another subject. We all hear from
our rural co-ops that they are concerned about EPA regulation
on their coal-fired plants. I would just like to remind you as
you move forward that we have made a lot of progress in coal
country since the implementation of the Clean Air Act, and we
can make further progress. But I caution you about going too
far. I would say the same thing about fly ash. And I would like
to invite you to come to the anthracite coal fields of
Pennsylvania and see the progress that we have made in an
environmentally sound way.
Prior to 1968 or 1969 before we had reclamation laws we had
100 years of dumping waste coal, raw coal, that was dumped
there. They were eyesores. Terrible. After the reclamation
laws, we were able to find ways to use that waste coal and we
are turning it into electricity, while cleaning up our
environment.
As a result of that, we have created hundreds of jobs. I
would also caution as you move forward with regulation of fly
ash to take into consideration that we are cleaning up the
environment. We have job creation in the coal fields. And I
would invite you to come to Pennsylvania and look at it.
I yield back, Mr. Chairman.
The Chairman. The gentleman yields back his time.
The chair now turns to the gentleman from Illinois, Mr.
Johnson, for his questions.
Mr. Johnson. Thank you, Administrator, for being willing to
be here with us. Just by way of quick background, I have a lot
of pride as a Member of Congress in my record on the
environment. I have a great deal of pride in the agricultural
district that I represent. But what I have a great deal more
pride in, I think every other Member of this Committee does
too, is our commitment to separation of powers. I would suggest
to you, Madam Administrator, that your Agency in particular,
not you particularly, but your Agency in particular, has
grossly violated and overstepped any reasonable limitations
with respect to the Executive Branch of the government.
Before we let your, I hope unintentional comments in your
opening remarks go un-responded to, let me just specifically
mention those three that you did, as well as some others. You
talk about the urban myth with respect to the SPCC and milk as
oil.
The fact of the matter is that you recognize that as soon
as you took office in January of 2009, that your Agency
specifically withdrew the proposed exemption that the previous
Administrator would have exempted milk from the Spill
Prevention, Control, and Countermeasure rule. You mentioned
spray drift. I would specifically bring your attention to the
fact that the EPA draft guidelines specifically provide or
would have provided for a zero tolerance level.
You mentioned dust and the ``exaggeration'' with respect to
dust. I would bring your attention to the fact that EPA staff
recommended having a reduction of 100 percent of coarse
particulate matter with respect to routine--if you want to call
it routine--agricultural dust. I would also point out that over
the course of your Administration and this Administration in
effect--you can call it a cow tax--but the effect of many of
your policies specifically by rule--not those of us who are
elected to Congress, but by rule--to enact what amounts to a
quasi cap-and-trade rule simply through your Agency.
I would also point out to you that with respect to
atrazine, to backyard ponds and application of the Clean Water
Act, your Agency has, time after time after time, intruded on
the legislation authority. I am not suggesting that you have
any ill intention. I am suggesting, however, Madam
Administrator, that your Agency has been absolutely the poster
child, if you will, for usurpation of legislative authority. I
can only speak for myself. I know the Chairman, the Ranking
Member, and other Members of this Committee are gravely
concerned about what EPA is doing, and specifically, as it
relates to agriculture.
In the agricultural sector, I don't think I am over-
speaking the case when I say that agriculture has been for the
history of this country the backbone of our economy. It is the
foundation of America. I think sometimes people from urban
areas recognize that maybe a little belatedly. I think we all
do, urban and rural both.
We are asked as a farm economy in a burgeoning world
population that is projected to triple at some reasonable time
here to feed the world, to feed America, at the very same,
Madam Administrator, that your Agency and USDA and others, are
conducting in a contravening manner regulations, economic
burdens, settlement of lawsuit is a systematic attack on
American farmers.
We are asked on the one hand--we asked our farmers: Feed
the world. Become more productive. And at the same time, we
have an Agency that is doing everything in its power to limit
the tools that American agriculture has to do its job. I would
suggest to you that that is counterintuitive and something we
on this Committee, and most Americans, don't like. I am not
putting the blame specifically on you. I am simply indicating,
Madam Administrator, that there are clearly some mixed messages
that we are getting from your Agency and the Administration
generally.
Let me ask you one question: I realize I am down to 45
seconds. I assume you are concerned about agriculture. I am
interested to know in the 30 seconds you have left what your
agricultural background is and what you believe the
relationship is between EPA, and an agriculture economy that is
being absolutely bombed by the entreaties of your Agency. Do
you have agricultural background, for example?
Ms. Jackson. No, sir. I eat food and I eat meat and I drink
milk.
Mr. Johnson. Congratulations on being aware of that.
Because, quite frankly, a lot of people aren't. I hope your
subordinates would follow your example, realizing that we all
eat. But go ahead.
Ms. Jackson. Certainly, growing up--I am a city girl. I
grew up in New Orleans, Louisiana. I had cousins who grew up--
what we would call up the river--who did farm and keep animals.
My great aunt did. And I visited her many times in the summer.
I think those connections are important. And I have a
tremendous respect for the agricultural sector. And as I said
in my opening remarks, I believe that stewardship of the land
and strides made in stewarding the land have led to not just
improvements in our environment but incredible productivity in
our economy.
Mr. Johnson. Well, thank you for your answers. Thank you
for your patience. I hope you will stay around for a second
round of questioning because a lot of people on both sides of
the aisle are gravely concerned about what your Agency is doing
specifically to our agricultural sector.
Thank you.
The Chairman. The gentleman's time has expired. The chair
now turns to the gentleman from California, Mr. Cardoza.
Mr. Cardoza. Thank you for being here today. I have to tell
you that I agree with the sentiments that all my colleagues
prior to me have shared. I would tell you that I believe that
your Agency is the most unpopular agency in farm country from
sea to shining sea, bar none. My first question to you is, have
you heard of the term judicial activism?
Ms. Jackson. Certainly.
Mr. Cardoza. I would submit that your Agency often pursues
a course of agency activism; where you want to have
jurisdiction over an issue but the law may not quite say so.
And so what Mr. Peterson and others are talking about here is
that you settle suits that allow you to then go and pursue a
course of action that you may not the right to do within a law.
Do you have a comment with regard to that?
Ms. Jackson. Yes, sir, I answered that question earlier but
I am happy to repeat. What we do in settling lawsuits is
consult with lawyers to determine whether or not we think there
is significant risks; what the law requires.
Mr. Cardoza. I did hear that previous explanation. You said
as part of that explanation that you settle suits based on the
grounds that you believe you can live with, if I recall your
quote correctly. Madam Administrator, you may be able to live
with them, but the farmers in farm country can't, oftentimes.
The realities are that you are making it much more difficult
every day to do exactly what my colleagues here, Mr. Johnson
and others, have talked about--providing the food, fiber, and
benefits of farming to our constituents.
I would like to ask you a specific question regarding
recently proposed rules to withdraw food tolerances of sulfuryl
fluoride, a product critical to the protection of U.S.
agriculture and especially specialty crops in California. This
move is puzzling to me because it will negatively impact public
health by increasing the potential for contamination and
diminish producers' ability to export goods to foreign markets.
Why is EPA issuing this proposal now? Can you tell me who are
the actual beneficiaries of this EPA proposal? And why is the
Agency taking such action, given the importance of this product
to agriculture and public safety?
Ms. Jackson. Yes, sir. The EPA's Office of Pesticides
Programs found through their analysis that the tolerance of
sulfuryl fluoride in food did not meet the Federal Food Safety
Act, the child safety standards that we are authorized by
Congress to employ. Those tolerances became an issue because we
were sued. On the plain facts of the law, we could not make an
argument that the tolerances were acceptable. This issue is
also related to fluoride in drinking water. We have, for quite
some time, been working with the agriculture sector, within the
confines of the law, to give them time to phase out use of
sulfuryl fluoride. A person's intake of fluoride is determined
by many things, including, in a very small way, sulfuryl
fluoride.
Mr. Cardoza. Madam Administrator, are you aware of any
member of your Agency, including yourself, who has ever
requested an outside group, environmental organization or other
group, to sue your Agency?
Have you ever sought out a suit?
Ms. Jackson. If you are asking me if I have personally
sought out a suit----
Mr. Cardoza. Anyone from your Agency.
Ms. Jackson. Not that I am aware of, sir. That would be
highly inappropriate.
Mr. Cardoza. I agree with you about that. Every year USDA
and EPA works in conjunction to release the Pesticide Data
Program Report. This report is an important tool for EPA in
setting those tolerances that you just talked about for
pesticide residues of various commodities. The report
demonstrates a robust reporting process, and year after year
shows the vast majority of fruits and vegetables fall
overwhelmingly below the tolerances set by EPA.
Yet every year there are groups which misconstrue this data
to suggest conventionally-grown commodities are unsafe for
consumption. Can your office begin defending both the robust
process which generates the reports, and the findings which
demonstrate that the safety of the food supply is, in fact,
safe?
Ms. Jackson. Sir, the Agency is committed to doing its job.
It is required to do that report. I committed to using the best
science possible in that report. I will simply say this. Our
Office of Pesticides Program has been working for decades now
under FIFRA, under the law, reviewing pesticides, making
registration decisions, making tolerance decisions, making
labeling decisions, oftentimes with very little controversy. We
review hundreds of those a year. So, yes, we are committed to
doing our job and not--it is not our job to opine on the report
but simply to produce it for the public.
The Pesticides Data Program Annual Summary is produced by
USDA, and the data is used by EPA in developing risk
assessments for pesticides.
Mr. Cardoza. Mr. Chairman, may I ask a follow-up on that?
The Chairman. Seeing no objection, 1 additional minute.
Mr. Cardoza. My point is, Madam Administrator, that if you
generate a report that is generating controversy and is being
erroneously misconstrued, if the report indicates the food is
in fact safe, but others are saying it is not, based on your
report, don't you have an obligation to defend the food safety
of this country and the misinformation that is being put out
there about the food supply?
Ms. Jackson. I believe our obligation is to present the
facts based on good science. And obviously what other people
say or do in our democracy is up to them.
The Chairman. The gentleman yields back his time. The chair
would like to remind Members that they will be recognized for
questioning in the order of seniority for Members who were here
at the start of the hearing. After that, Members will be
recognized in the order of arrival. I appreciate my colleagues'
understanding.
With that, the chair turns to the gentleman from Texas, Mr.
Conaway, for his questions.
Mr. Conaway. Thank you, Mr. Chairman. Madam Administrator,
thank you for coming. As the Chairman said, I am from Texas. We
have a particular angst about your Agency and the way that you
have treated the entire state with respect to the Clean Air Act
and the partnerships that we previously had and we are working
on it. But that is not my question.
As I talk to farmers and ranchers in my district, much like
Mr. Cardoza, I get some of the angriest, harshest comments
about your Agency from them. And they are mad. But underlying
that mad is a fear of your Agency. And it is quite unbecoming
of an American Agency like yours to be feared by the folks that
they believe you are putting them out of business, almost
intentionally. You have a wonderful opening statement that you
didn't read. You say the perfect things: At the same time, I am
very aware farmers operate under unique and challenging
circumstances, small margins, international competition.
Perfect. Couldn't have said it better myself. I may plagiarize
it and use it at some point in time. But when you put out
regulations that, specifically and on purpose, raise their cost
of doing business and make them less competitive, or put them
at a disadvantage to the rest of the world, then they begin to
fear your reach into their quiet lives.
I live in Midland, Texas. I was driving to Garden City,
Texas, which is a beautiful spot, the other day, and the wind
was blowing 40 to 50 miles an hour. It wasn't farm country, it
was just pasture. The coarse particulate was so thick across
the road, we had to drive very slowly because we couldn't see
through it. Your statement at page 15 says you will issue
standards on coarse particulate matter. That puts--the folks at
west Texas, who are used to a way of life in which coarse
particulate matter is a way of life, don't quite understand how
you could put standards in place of whatever level that they
could abide by. And so that creates this disdain for your
Agency because of the way it looks under their watch.
With respect to the EPA and the Administration--the Federal
Government is about to regulate waterways. Is it the intent of
the EPA and the Administration to have the Federal Government
regulate waterways and to regulate and enforce how farmers will
operate their farms, or will it respect the Congressionally-
mandated partnership between EPA and the states established
under the Clean Water Act, particularly in light of how Texas
has been treated recently with respect to the Clean Air Act?
Ms. Jackson. Well, sir, I think you are getting at nutrient
pollution, is that right? It is our intent, with the exception
of the State of Florida, where we were required under an
agreement reached by the previous Administration----
Mr. Conaway. I understand that. Would you compare that then
to what you did under the Clean Air Act with respect to
stripping Texas of the opportunity to continue to run a
permitting process that has demonstrably improved clean air in
Texas. And yet you and your Administrator in Dallas apparently,
in what appeared to be to us in a pretty arbitrary way----
Ms. Jackson. There is one very clear similarity, which is
the decision that the Texas permitting program did not meet the
Clean Air Act was also made by the Bush Administration.
The permits in Texas do not meet the legal Federal
requirements under the Clean Air Act, and we have been working
in Texas to bring that program into compliance with Federal
law. That determination was made in the last Administration.
The work is certainly being done and joined here. And we work
with several companies in Texas to get their permits up to
speed.
Mr. Conaway. But you took it away from the state.
Ms. Jackson. We have not taken it away from the state.
Although, in those cases where people need permits--for
example, greenhouse gas permitting, where the state has sued us
and has indicated they have no intention of amending their
state implementation plan to deal with greenhouse gases, EPA is
running the program in the state, because otherwise sources in
Texas would have no way to comply with the law.
Mr. Conaway. Well, I will wait until a second round. Thank
you.
The Chairman. The gentleman yields back the balance of his
time.
The chair recognizes the gentleman from California, Mr.
Costa, for 5 minutes.
Mr. Costa. Thank you very much, Mr. Chairman.
Administrator Jackson, I appreciate the fact that you are
here. I want to try to cover quite a bit of ground here in the
5 minutes allotted. I want to talk about, obviously, the
registration process for restricted materials, both herbicides
and pesticides. I want to talk about the issue on dust,
although that has been covered quite a bit. And I would also
like to touch upon water.
Before I do that, though, I want to get a clear
understanding. I have dealt with these issues at the state
level and now at the Federal level for many years; and you, as
an Administrator, and all those who work under you, as those in
California, first begin their task at looking at risk
assessment versus risk management, right?
Ms. Jackson. That is a framework we use quite often.
Mr. Costa. And so when you are trying to assess the risk on
the potential health and safety to folks, whether it is
consuming food or folks just in everyday walks of life in rural
America or everywhere else, you have to make an assessment in
where you can do the most good to protecting that health and
safety, right?
Ms. Jackson. Certainly, sir.
Mr. Costa. It just seems to me that all too often, all too
often, as the science has gotten better, as we look at parts
per million, which was the initial ability to test 20, 30 years
ago, to parts per billion, which we were able to do in the last
15, 20 years, to now parts per trillion, that we do ourselves a
great disservice, whether it is at the Federal level or the
state level, at attempting to chase down every part per
trillion in making those assessments on risk management. Would
you agree or disagree?
Ms. Jackson. I would certain agree and have testified
before that as science has gotten better, it makes those
decisions harder, because we can see pollution we couldn't see
before.
Mr. Costa. But you make an assessment as to where the
quantifiable risk is going to be. I mean, how many gallons of
water do you have to consume per day at parts per trillion, as
we have in naturally occurring arsenic underground that has
been there for millions of years versus other protections that
you could provide on something that is parts per billion or
parts per million that you can have far more impact?
I submit to you, you don't do a very good job of that--not
you, personally, but the Agency--nor have we done a very good
job of that for the last 20 years. We are out there chasing
anything that is detectable. How do you make a quantifiable
judgment on that basis?
Ms. Jackson. When I got to EPA, one of the things I said
was that we had to use sound science, the best science. And one
of the other things that has happened is we have initiated
numerous scientific studies to get facts so that people aren't
operating from a precautionary approach as much as a knowledge-
based approach.
Mr. Costa. We can talk about this a lot more. Let me get a
little further into the weeds here, because I want to pursue
that later on at a separate time.
Why did your Agency decide to re-review the study with
regards to atrazine?
Ms. Jackson. There has been a lot of data, I believe the
number is over 150.
Mr. Costa. Everybody agrees, there has been a lot of data,
and there has been review. Why did you decide to re-review it?
Ms. Jackson. I would just like to answer the question.
Mr. Costa. No, I know. But there----
Ms. Jackson. So there was a review. It was based on data as
late as 2003. Since 2003 up to 2009, there has been lots of
data, including data from the registrant, on impacts from
drinking water. So rather than have that data sit there and
scare people, we decided to do a scientific review.
Mr. Costa. Well, I don't think that it has been portrayed
that way. Let me move on.
It was talked earlier about--my colleague from Texas--I
have to call them dust. We can call it PM10, or we
can call it PM2.5 or coarse materials, but in
Fresno, California, we just call it dust.
What are you going to do to ensure that normal farming
operations will not be considered noncompliant under any new
large particulate matter regulations? I mean, we have made
tremendous strides, as you know, in dealing with this issue in
nonattainment areas.
Ms. Jackson. I absolutely agree. And I also think there is
a general acknowledgment that coarse particle matter is a
health hazard, and that agricultural and rural areas have
worked with their states and counties to minimize that where
they can. The law requires a 5 year review.
And I want to clear up another myth, because it was
repeated again. EPA has not proposed a new rule on dust. We
have not proposed tightening it. The review by the Scientific
Advisory Committee, which is listed in the statute, says that
it is equally possible to retain the current dust standard as
to change it.
Mr. Costa. Well, very quickly. We didn't get a chance to
touch upon fumigants, soil fumigants, which are a critical
situation. Notwithstanding the Montreal Protocols, the efforts
to provide new tools for soil fumigants for a host of commodity
crops is leaving little tools in the toolbox to allow us to
compete when many of these fumigants are being used all over
the world. And I for one believe--and, Mr. Chairman, thank you
for your indulgence here--that the Agency has to do a far
better job in allowing us to reregister and provide
alternatives on soil fumigants than you have done thus far.
Thank you very much. And I will wait for the second round
of questions.
The Chairman. The gentleman yields back his time.
The chair now turns to the gentleman from Florida, Mr.
Rooney, for his 5 minutes.
Mr. Rooney. Thank you, Mr. Chairman.
Ms. Jackson, my questioning is much along the lines of Mr.
Goodlatte's in that I also sponsored an amendment to the recent
continuing resolution to defund the EPA with regard to a
numeric nutrient rule in Florida.
As you may recall, last spring I, along with a bipartisan
group from the Florida Delegation, met with you over at your
building to discuss the numeric nutrient rule for Florida, and
at that time we basically asked you for two things, and that
was a true, independent, complete third-party review of the
science, a third party agreed upon by yourself as well as the
Florida DEP, Department of Environmental Protection. We also
asked for a complete economic analysis of the rule, including a
cost-benefit analysis. And the reason for that is there is a
huge gap between the EPA and Florida's DEP and DACS estimate,
what the estimate costs to be would be. The EPA says it is
about $100 million a year, but Florida DEP and DACS estimates
over $1 billion a year. So obviously there is a huge gap there,
and there is a lot of unanswered questions here, which is the
reason for the request.
Additionally, you may remember that in our meeting you
continued to refer to the needs of the plaintiffs in the
lawsuit, and that you needed to be sensitive to the plaintiffs
in this lawsuit, which I believe is Earth Justice. But you may
also remember us pushing back, and I can say that over 21
Members of the Florida Delegation out of 25 voted in favor of
my amendment to defund your efforts, as well as our freshman
Senator Marco Rubio, who entered similar language over in the
Senate; our Senator Bill Nelson, who was successful in getting
certain delays, a Democratic; our Governor; our Agriculture
Commissioner Adam Putnam, who was then a Congressman, at that
meeting. The State Attorney General, the Chamber of Commerce of
Florida, the Rural Water Association, the League of Cities, and
the Farm Bureau all vocally opposed this rule.
So while I understand that you need to be sensitive to
plaintiffs, I again remind you that we need to be sensitive to
our constituents. And the fact that we don't have an agreement
between all these parties--they are at least willing to try
through some kind of third-party independent review--leaves us
in the situation where it is us against you. And I kind of find
it interesting that, so far, all the line of questionings
between Members of this side of the aisle and that side of the
aisle all seem to be us against you. And I have never seen that
before as a Member of Congress, and I think that that should
tell you something.
My question is, where are we going? Where are we now? I
mean, in the Senate the CR was voted down, so we are kind of in
limbo. And I guess I just want to ask you, will you commit,
moving forward, so that we can try to bring--I want to be the
environmental Congressman from my district. I would love to
have that feather in my cap, but I also represent a lot of
farmers.
I just want us to get to the point where the farmers, the
Chamber of Commerce, Earth Justice can all sit down and try to
come to a number that it is not just EPA's number, rather than,
you guys are just going to have to deal with it, and I don't
care if you don't think that you can get there.
So as we move forward, can we get some kind of commitment
that EPA and Florida DEP at least can come up with some kind of
agreement to have a third-party review and try to make people a
little bit happier even if they are not going to get everything
that they want?
Ms. Jackson. Sir, I am happy to continue our work. We have
been working very hard with Florida DEP. There is a 15 month
delay in implementation of the rule, as you know. Florida's DEP
has set numeric standards and nutrient criteria around the
state. We are working to review those to see where they can be
used basically in place of the numeric standards we were
required to do as part of the Bush Administration's settlement.
So I am happy to continue to work--and also on the costs.
I do want to point out that when we had that meeting, we
did agree to do cost-benefit analysis. We did do it. There is
still concern over it, and I am happy to continue those
conversations. We agreed to do independent scientific review of
the coastal standards. That is being done. That is why there
are no estuarine standards proposed. And I am happy to continue
to work on this issue.
I just have to point out that, as you say, there is severe
water quality degradation in Florida from nutrients, so I would
like nothing better than to find a solution that works for
everyone.
Mr. Rooney. If I just may, I appreciate that. And the fact
that we are looking for independent third-party review for the
coastal, I think it is just as vital when we talk about the
rivers, lakes, and streams as well.
With that, Mr. Chairman, I yield back.
The Chairman. The gentleman yields back.
The chair recognizes the gentleman from Minnesota, Mr.
Walz, for 5 minutes.
Mr. Walz. Thank you, Chairman Lucas, for your time.
And, Administrator Jackson, thank you for coming here
today. Mr. Rooney kind of hit on what I hit on. I am not sure
that we could get a unanimous vote that today was Thursday, but
we seem to be getting along the same lines here.
And while I agree with that, I hope it doesn't come to an
``us versus you'' type of thing, because I come from a proud
district, one of the leading agricultural-producing districts
in the country, but also leaders in environmental standards,
leaders of keeping that clean. And I know, as a father of young
children, just like my agricultural producers that are fathers
of young children, I want them to breathe healthy air, drink
clean water, and enjoy the fruits that, again, as is often
said, we didn't inherit this from our ancestors; we are
borrowing this land from our children.
So I don't think it is mutually exclusive to get and
recognize our producers as also good stewards of the land and
also those of us who want to see that continue on to get right.
And if you will, I kind of take a ``don't throw the baby out
with the bath water'' approach. Especially if the bath water is
contaminated, we have to do that. But if it is not, get it
straight.
And I say this because as a young man I lived in the
People's Republic of China for a few years, and I know when you
have environmental degradation what it does. There are areas
that have catastrophic problems.
But what my colleagues are saying is true, Ms. Jackson. Our
producers are deeply concerned. These are good folks that feel
like they are being overwhelmed. They feel like their
livelihoods are under attack. And, I think, quite honestly,
that they feel a lack of respect that they are actually right
on, that they are trying to make a positive difference.
So I share that with you in understanding how difficult
your job is, but my colleagues are right when they are saying
this.
I have a couple questions for you. I think one of the
things for me, how do you go about cost-benefit analysis of
different sectors of the environmental impact of changes? What
would happen? And I agree, and I am glad you put to rest some
of the myth from milk spills or things like that. But when we
hear the dust issues--and you said, again, putting that to a
myth--but when a rule, a real rule, is put into place, how is
that economic impact assessed?
Ms. Jackson. Well, we are required, as part of the
administrative procedures, to look at the cost of the rule, how
it affects the sector, and what benefits there might be, either
public health benefits, especially in an air rule, or benefits
to, say, fishing or other industries from clean water, drinking
water benefits as well.
Mr. Walz. Do you think Mr. Rooney's point, though, on the
third party, the good point on this, a third-party analysis,
and some of those things? Whether it is fair or not, people's
perceived reality is their reality. My producers are very
skeptical of EPA and their analysis on this. How do we get
around that? How do we make science and data the driving
factor?
Ms. Jackson. And that is my goal as well, sir. I think that
there are times when independent analyses are very important,
like the National Academies independent analysis on Biological
Opinions, like the work we are doing on atrazine. I know that
is controversial, but that has been a very open, scientific
process with a scientific advisory board who are looking at
these questions. I actually think, at the end of the day, it
will cause people to have the same level of information, if you
will, because it is not EPA, it is not the other side.
Mr. Walz. It is an important part. And this is not new to
your tenure in this. I went back and I spent a lot of time,
because it is a fascinating discussion. I think there is
something to be learned on the banning of DDT and the
implications. You know that. There is a whole stream of thought
that goes from the far edge to some fairly mainstream science,
but there was a cost-benefit analysis in how that was
implemented, and we are at the point again where people are
questioning that. So I thank you for where you are at on this.
My question is, is there something better we can do from
EPA to get out to the stakeholders? Can you do field hearings
in our districts and things like that? I think it is important.
I appreciate you coming, and I appreciate your trying to be
candid, and there are great questions here. I would love to see
my constituents have that ability to hear, to ask, to interact.
I know my job is to represent them because you can't be
everywhere, but is that something EPA would try and do? And it
is not a PR tour. It is an informational tour, and it is the
stakeholders believing they are being heard. I think these
concerns on both sides of the aisle that producers don't feel
like they are being listened to, those are valid from them.
Ms. Jackson. Yes, sir. And anything I can do either
personally or through the Agency to increase the amount of
communication, I am happy to. We tried to count up. I know we
have done hundreds of meetings with various folks just in the 2
years since I have been Administrator at the political level,
but I also think listening sessions are good. We have offices
out in the various regions who do a lot of work as well, and I
am personally committed to increasing the amount of time I
spend on communication with this sector because it can only
help.
Mr. Walz. I certainly appreciate that.
I yield back, Mr. Chairman.
The Chairman. The gentleman yields back the balance of his
time.
The chair now turns to the gentleman from Ohio, Mr. Gibbs,
for his 5 minutes.
Mr. Gibbs. Thank you, Mr. Chairman.
I want to pursue a little bit--I heard you say in your
testimony, I appreciate if you said this--that the numeric
nutrient standard, that it would not apply to other areas.
Because I have heard rumors that there was thinking about the
whole Mississippi River Basin. Is that true that that is not
the plan and the intent of the EPA to move that way?
Ms. Jackson. That is not the plan of EPA, sir. And I do
want to be clear on that, because I know there is a lot of fear
out there that other areas are next.
We believe that states--and many states in the Basin have
already done a great job of starting to cut down on nutrient
pollution into the Mississippi River Basin. And we would like
to----
Mr. Gibbs. Okay. I got the answer.
I want to follow up. I am a little concerned in the Florida
situation, I am learning about that, and as you know, Florida
is where all the phosphorus as a major crop nutrient comes
from. And if we don't get it from Florida, I guess the other
sources would be Morocco, Saudi Arabia and China, which would
severely increase the cost to our producers across the United
States.
My understanding, there are some permits that have been
lingering for several years to increase the mining capacity in
Florida for that. So I have a general concern about permits
not--I guess it would probably be section 404 permits or
whatever they are, to move forward with those operations. And
then, of course, I follow that a little bit more with the
unprecedented action of the EPA here recently of revoking a
permit after there was final approval done after 3 years. I
know the EPA, you will probably say it was a veto, but it was a
revocation, and I think that is unprecedented.
So I would like a comment on what is happening in our
phosphorus-mining operations in Florida that supply nutrients
to our American farmers.
Ms. Jackson. Sir, I would have to get that answer for you
because I don't know the status of any permit cases down there.
I haven't had any personal involvement.
Mr. Gibbs. Well, we need to look into that, because I know
there is one substantial permit that has been lingering since
2006 or 2007, and it is key to keep those operations going down
there.
Also, what would be your definition of navigable waters?
Ms. Jackson. That is a much debated and discussed topic. So
I think I will--suffice it to say that I recognize in my job
that the jurisdiction of the Clean Water Act and its
limitations to navigable waters and the two Supreme Court cases
that spoke to that issue are all very important and have
created quite a bit of uncertainty out there in terms of
jurisdiction.
Mr. Gibbs. I am concerned about that. I know that your
Agency will be putting out guidance to move forward to that,
and I am just concerned that there is a broad expansion of your
Agency's jurisdiction on that that is going to have an impact
on our economy and agriculture in general. Wouldn't some of
that be better left up to states; waters that go beyond what
most people would consider navigable?
Ms. Jackson. Right now, as a result of the two Supreme
Court cases, there is great variation and confusion about what
waters are covered under the Clean Water Act. So EPA has been
developing--has not yet released, but if we do release, it will
be with full public comment guidance that is intended to
relieve some of that clarity. We have heard from the regulated
community that they need certainty.
I do want to point out that we are very well aware of the
exemptions that agriculture currently holds from the Clean
Water Act, and very respectful of the fact that those
exemptions are statutory. And I don't see any way, nor, of
course, any reason, to deal with that matter.
Mr. Gibbs. On pesticides, would requiring pesticide users
to obtain NPDES permits under the Clean Water Act--would that
increase the environmental protection?
Ms. Jackson. EPA took the position that there would not be
a need to get a separate permit, but the courts found
otherwise, sir. So the courts have ruled that if you apply
pesticides to waters--not on land, not terrestrial
applications, directly to water--then you need a Clean Water
Act permit.
EPA has been working with the states, and just recently
requested from the court another delay to continue working with
states, on what we call a general permit. General permits are,
I will say, the least burdensome--I don't know any other way to
say it--permit.
Mr. Gibbs. I appreciate that. For the applicators, under
the general permit, is there any protections in the Act that
would protect the citizens from lawsuits? Is there any legal
protections--when they are applying chemicals under a FIFRA-
compliant label, is there any protections?
Ms. Jackson. That is exactly the problem. The court
decision--if someone right now applies without a Clean Water
Act permit, they could be subject to lawsuit, citizen suit. So
the general permit would provide protection. It would require
registration and protection. But it wouldn't--what we have been
working on, it would not apply to people, it would only apply
to land. And it doesn't apply to runoff or irrigation return
flows. It applies if you apply pesticides to water on purpose.
Mr. Gibbs. Thank you.
The Chairman. The gentleman's time has expired.
The chair now recognizes the gentleman from Oregon for 5
minutes. Mr. Schrader.
Mr. Schrader. Thank you, Mr. Chairman.
Switching to forestry, if we may, for a minute, Madam
Administrator. On January 12, you announced EPA would
promulgate a rule deferring the regulation of biomass carbon
emissions under the current greenhouse gas tailoring rule for 3
years while the Agency reviews the impacts. I appreciate that
actually. This is a case where a lot of scientists and
community came together and there was bipartisan questioning.
It seemed like a fairly sudden reversal of the old feeling that
biomass fuel is carbon-neutral over its life cycle. So I
appreciate you taking a longer view of it.
Some particular questions just so I understand more exactly
where we might be going. I think that one of the big concerns
that I am hearing about, and have myself, is that the actual
initial rule, the tailoring rule, introduced a little bias into
the regulation of biomass carbon emissions. Can you assure us
that that won't be the case, and that the proposed rule will be
neutral on whether biomass carbon emissions ultimately require
regulation?
Ms. Jackson. The time frame that we announced, Mr.
Schrader, was intended to make sure we could get the scientific
data and information necessary to be able to look at the carbon
emissions for various forms of biomass and be--and determine
where we have carbon neutrality, where we might even have a
benefit, and where there may be concerns.
Mr. Schrader. But the interim rule itself will be neutral
and not bias the ultimate outcome?
Ms. Jackson. Yes, sir. I think I understand the question.
Yes. The intention was to give us a full 3 years and to make
another rulemaking before that expires so that biomass
facilities wouldn't be subject to uncertainty in the meantime.
Mr. Schrader. I really appreciate that. What certainty can
I have that rulemaking will be finalized by July 1?
Ms. Jackson. Well, EPA has committed to it. And I think
that, again, it was intentional that we have the study and then
commit to the rulemaking for the exemption. And, of course,
that will go through public comment as well so people will get
a chance to see it.
Mr. Schrader. Very good.
In that January 12 letter, you also committed to the
scientific review of the biomass combustion, and you ensured, I
guess the quote would be, ``will ensure that partners within
the Federal Government and scientists outside of it with
relevant expertise, claiming equal roles in the examination,''
kind of getting at some of the background questions we have had
here, the third-party issues. This scientific review will later
be followed up by the rulemaking.
When can we expect to see an explanation how you are going
to reach out to outside parties and when the scientific process
will start?
Ms. Jackson. Sir, let me get you a schedule through the
chair for the record. But I will commit that we are looking at
an independent process, and we have standards for peer-review
and scientists. So that will be a very public process as well.
Mr. Schrader. Very good.
I guess another question that has been discussed a little
bit is the Federal appeals court in Seattle has questioned the
authority of EPA to establish by rule nonpoint source status of
forest roads. I am a little concerned about that. Most of the
roads are relatively indistinguishable between local county
roads and farming roads. And I think, again, it has been
brought out today in the hearing--does EPA plan, I guess, at
this point to stand behind its longstanding regulation to avoid
imposing additional burdens on forest owners and farmers and
local governments by declaring what has been nonpoint source
problems to be point source?
Ms. Jackson. Please let me get an answer for you for the
record, because I don't know off the top of my head where we
stand with analyzing that court case and what it might mean for
our Section 319 Program, our Nonpoint Source Program.
Mr. Schrader. I appreciate that for the record. That would
be great if that is possible.
Mr. Schrader. Just a last editorial comment. I am concerned
about the Agency. The tenor of the conversation here is pretty
tough, and I have become more concerned. This is a tough, tough
time for this great country of ours. The President has called
out for a little less onerous regulation. And, I mean, I
understand there are good people trying to do good work, but
this isn't the time to beef up stuff in addition to what people
are struggling to deal with already, whether it is a local
community or a forester or a farmer.
I am concerned at this point that we are looking a little
bit like the Department of Education under No Child Left
Behind. There is this artificial standard; the benchmarks keep
getting moved. And even though you make progress, you fail. And
I think that is where a lot of the rural communities and a lot
of the farmers and, frankly, a lot of Americans are feeling the
hurt right now. So just as a word.
Thank you for your testimony. I yield back.
The Chairman. The chair now recognizes the gentleman from
Georgia, Mr. Scott.
Mr. Austin Scott of Georgia. Thank you, Mr. Chairman.
Ms. Jackson, I understand that we have a mutual friend in
Dr. David C. Bridges, the President of Abraham Baldwin
Agricultural College. You made a statement when you were in
Georgia that, as the EPA Administrator, there was no more
important agenda for the EPA than keeping farmers on the farms.
And I think, as we have gone around this room, you can pretty
much tell that it seems to us and those of us who want to
support agriculture that we can either have the EPA on the farm
or the farmer on the farm. And the farmer is certainly the one
that I am in favor of. I certainly want my child to be able to
swim in the same rivers I did I and understand that.
But I want to ask just a couple of quick questions. Cost-
benefit analysis on environmental impact studies on your
regulations, are they done? And how good of a job do you think
that the EPA does in determining the loss of private-sector
jobs by the new regulations that are proposed?
Ms. Jackson. They are done, sir. And we certainly do the
best job we can. We have recently stepped up our jobs analysis
to try to make it more robust. EPA's history on the cost of
regulations is that usually our estimates are much higher than
compliance costs tend to be, and I think that is an effort to
err on the side of the services.
Mr. Austin Scott of Georgia. With that said, can you tell
me what a self-contained breathing apparatus costs?
Ms. Jackson. I don't know off the top of my head.
Mr. Austin Scott of Georgia. Well, ma'am, your department,
as I understand it, has said that every farmer must have that
when they are spraying their field. And if you don't know what
it costs, I mean, that is an additional cost to the farmer.
Every time you say the farmer has to have something, it is an
additional cost to that farmer. It means that they are less
profitable and less likely to be able to stay in business.
So who will be administering the registration and the
fitting for the self-contained breathing apparatus?
Ms. Jackson. Sir, can you give me a little bit more
information? What regulation you are referring to?
Mr. Austin Scott of Georgia. I will be happy to confer off
the record. I don't want to waste the rest of my time here.
I would point this out, and then, Mr. Chairman, I want to
yield the rest of my time to Representative Fincher as we are
about to go vote.
I hear what you are saying about compliance-related issues.
I would appreciate a meeting with you to discuss an issue in my
district, where one of your--this was a paperwork violation
where a constituent was fined $50,000 per house for not having
lead-based paint disclosure forms signed. It was a paperwork
violation. They were told if they paid it within 30 days, it
would be reduced from $150,000 to $50,000. That is the
approximate numbers on the case. That really is, for a
paperwork violation--my personal belief is that that is very
abusive, not from you, but from the individual member that
works for you that did that.
And with that said, Mr. Chairman, I would like to yield the
rest of my time to Representative Fincher.
Mr. Fincher. I thank you.
Thank you, Ms. Jackson, for coming today and spending some
time.
As an active farmer, seven generations, I am very familiar
with the procedures and taking care of the land, taking care of
the air, taking care of the water. My family is committed to
leaving the world a better place now for our children and in
the future. But at the same time, Chairman Lucas, hit on this
when we started the day. Where is the end? Where does the
jurisdiction stop for the EPA? Is it just an end-around all the
time? Don't you think we would be better off making these
regulations at a state level more than the Federal Government?
The image that the American people have, and especially the
farmers at home--I mean, my district is very rural and very ag-
related--is that Washington doesn't know best, and the EPA is
out of control. And basing so much information on science is
where we should be, not just theory. And it is a real problem,
and we just--we have to move forward. And we are going to do
that, I think.
But there is a divide now between home and here. And it
just seems like every piece of legislation from the Clean Water
Act and going down the line to spray drift--I mean, I have
handled more pesticides probably than all of this room put
together over my lifetime, and I am pretty healthy.
Nobody wants to protect the environment any more than the
farmers, but the states and local governments and the farmers
can see after it and do a good job of it, I feel, without
Federal bureaucrats breathing down our throats.
The Chairman. The gentleman's time has expired. The witness
may answer.
Ms. Jackson. Well, all I can say, sir, is that I appreciate
your position and admit to you that I ran a state program. The
vast majority of EPA's programs of the Federal laws in this
country are implemented through the states, as you must know,
from the pesticide world and others. So thank you.
The Chairman. The chair would note to the Members and the
witness that we have four votes on the floor. These are the
last recorded votes of the day. I would suggest that we will
turn to the gentleman from North Carolina for his questions,
Mr. Kissell, then we will stand in recess until the conclusion
of votes and will return. We appreciate the cooperation of the
Administrator. But I would ask Members to return promptly after
the votes so that we may finish in the spirit of officially
easing everyone's time.
The gentleman from North Carolina, Mr. Kissell, for 5
minutes.
Mr. Kissell. Thank you, Mr. Chairman.
Thank you, Madam Administrator, for being with us today.
And I will move quickly, knowing that votes are coming up.
Madam Administrator, perception is reality, and I think
what you have heard today that there is a strong perception
that the EPA does not fully understand, or is not ready to work
as closely with the ag community in a lot of ways. You had five
examples of myths earlier on. I am sure that, after having
debunked those myths, we could fill that ledger up with many,
many more. And that is part of the problem is that there is so
much uncertainty that is involved.
I would like to, as the Chairman did earlier, compliment
the Agency and our Committee, too, of working together to
counter the court ruling to come up with legislation that, in
effect, does what we intended in Congress to do. And I think
that, as an example, we probably should need to do that more;
that you talked about and the Ranking Member talked about some
of the court decisions that we accept or some of the lawsuits
that we settle without perhaps having the Committee's input.
And it is kind of like we just say, ``Okay, this is the best we
can do.'' But is that the intent of what we want to do? And I
think we need more communication.
There is the idea of the law of marginal returns, that the
additional requirements, what do they produce in terms of
actually improving the environment? And I move into a question
here, and it is along the lines of uncertainty.
There is an industry that is a heavy industry, high-energy
industry, located well out of my district that is interested in
moving to my district. They are concerned about the
particulates, the PM rulings. They can meet the EPA's standards
now of 15 parts per billion, but there is that rumor out there
that it is going to be changed to 12 to 14, which they could
not meet even in a new facility. So they are kind of at the
point of saying, why should we even try? Why should we improve
if we can't meet what is going to be a new regulation?
A large percentage of our farming income, we know, comes
from off the farm, because farmers and their families just
can't make enough money just simply farming. When we have
industries that help provide those jobs in rural areas, but yet
they can't come to those rural areas because of uncertainty,
then that 12 to 14 parts per billion is almost down to the
natural levels.
What can we tell these companies that will help them feel
more certain that they are going to have input and ideas that
the EPA is working with them, as my colleague Mr. Schrader
said, that this is not the time to really be looking for those
extra ounces of regulation when they won't produce that much in
terms of improving the environment?
Ms. Jackson. Well, sir, any regulation EPA does is going to
be subject to full public comment. There is quite a bit of
stakeholder input on the development of Clean Air Act
regulations. The particulate matter regulations, both fine
particles and coarse particles particulate matter, saves lives.
And so what the Clean Air Act says EPA must do is every 5 years
review the science to determine how best to protect human
health, how best to----
Mr. Kissell. And I hate to interrupt, but I know my time is
about up. But within the every 5 years, if there is
uncertainty, what is it going to be next time, what is it going
to be next time, how can industry plan, and how can our farmers
plan and know with certainty?
And I am going to yield back on that because I know
everybody needs to go vote. So I appreciate it, and I yield
back.
The Chairman. We probably have 6 minutes before the
conclusion of this first vote. I appreciate the Administrator's
indulgence of our time and voting requirements. The Committee
will stand in recess subject to the call of the chair.
[Recess.]
The Chairman. The House Agriculture Committee will
reconvene to continue hearing from our witness, the
Administrator of the Environmental Protection Agency. With
that, I would now turn to Mr. Tipton for his 5 minutes.
Mr. Tipton. Thank you, Mr. Chairman.
Thank you, Ms. Jackson, for being with us this afternoon. I
have a couple of concerns, obviously, as I think you probably
heard throughout this afternoon, and it is really getting back
to the costs that are being borne by the American people.
I agree with your earlier statement, as I believe everyone
does, that we all want clean air, we all want clean water, but
there is a general sense that the EPA is over-reaching. As I
toured throughout the Third Congressional District of Colorado,
it was remarkable to me. We have held better than 27 town hall
meetings, and within no more than 5 minutes, at each one of
these meetings, the EPA and over-regulation impact on
communities comes up.
I think the primary concern ultimately is not necessarily
with the goal. It is overreaching. And we are by de facto
actions having regulatory tax increases on the backs of
struggling American families right now, families, senior
citizens who are on fixed incomes that simply can't afford any
more. And the EPA continues to regulate and to pass those costs
on in the forms of ultimate cost to the consumers. All of this
regulatory activity does cost money. It is not only to the
farmers and small businesses, but, as I noted, to the
taxpayers.
Concerning the budgetary pressures that we currently find
ourselves under, the EPA and all Federal agencies, I would like
to know how are you prioritizing your expenditures?
Specifically, since that was part of the topic in today's
conversation with you, was the revaluation of the atrazine a
high-priority project for you to spend funds on, or do you
believe that the appropriations that you are going to have for
this are simply going to be limitless? When you are going to be
going into the evaluation, are there going to be any of the
other chemicals that you are just going to perform unscheduled
reviews?
Ms. Jackson. Thank you, sir.
The reevaluation of the new science that has emerged on
atrazine is part of our base budget, and we are intending to
continue funding it so that we can complete it. It will
actually be quite helpful because we know we are having a
National Cancer Institute study that we have been expecting, I
believe, next year. So there will be a need to continue to
evaluate these studies that have been commissioned on atrazine
and to continue our work.
I see that very much as part of our commitment to sound
science; that when new data are put before us, we try to make a
priority of evaluating it, especially as studies start to build
up.
Mr. Tipton. I understand that.
Would you care to comment in terms of some of the impacts?
And I know you have to recognize it goes probably beyond the
scope of this hearing, but into the broader EPA as well, the
unfunded mandates that you are putting on communities, which
ultimately go on the backs of hardworking people having a tough
time paying their bills.
Ms. Jackson. Every rule we do, every regulation, is subject
to an analysis of its costs, an analysis of its benefit. That
is no more true than the pesticide program, so important to
this Committee, where we were required even in our registration
decisions to look at cost-benefit. It is actually sort of the
basis of how we evaluate a pesticide.
So rather than unfunded mandates, what I have said is that
our job is to implement the environmental laws. That is what
EPA was created to do, and it is our job to do that, and to do
it in a way that I hope is innovative, and that, consistent
with the President's new Executive Order, gives value to the
American people, gives benefit that outweighs cost.
Mr. Tipton. When we are talking about value to the American
people, have you ever considered having a pilot program rather
than just establishing a new regulation? We take part of your
$10.3 billion budget and actually spend it on fixing the
problem rather than creating just more regulations and hiring
more people?
Ms. Jackson. A significant part of our budget goes out the
door in grants to states, to community groups, to the State
Revolving Fund, all of which are about funding programs that
fix the problem. Our 319 Program, where we are spending so much
money on nonpoint source pollution, there is funding,
authorized, of course, by Congress, and appropriated to us for
those purposes.
Mr. Tipton. Mr. Chairman, may I submit a few more questions
to the Administrator? I am just about to run out of time. I
would be happy to submit those to you.
The Chairman. Seeing no objection, so ordered.
The chair now turns to the gentleman from Vermont for his 5
minutes. Mr. Welch.
Mr. Welch. Thank you very much, Mr. Chairman, Administrator
Jackson. Thanks, by the way, for hanging in here. This is a
long and contentious hearing in some ways.
Many of the people who are affected by initiatives that are
either legislation passed by Congress or regulations that are
promulgated by the EPA under the authority granted by Congress
are under some pressure to make adjustments, and we are hearing
a lot of Members speak about that.
I am from Vermont, and we have a significant dairy farm
community. They have expressed to me some of the same
frustrations. But I know some of the frustrations people
express have more to do with what they think is in the
legislation or they think what is being done versus what
actually is being done.
I just want to give you an opportunity to address a couple
of the things that I hear commonly stated. Number one, a cow
tax. A lot of my farmers literally were of the belief that
Congress, with the EPA, passed legislation that would, in
effect, put a tax on every cow. Do you want to speak to that?
Ms. Jackson. Yes, sir. As I said in my opening statement,
EPA has absolutely no intention, has never proposed a cow tax.
That rumor was really started by lobbyists, and it was, what if
EPA did it, and it became a fait accompli. We are not going to
do it. We do not intend to do it. In fact, agriculture is
exempt from greenhouse gas regulation.
Mr. Welch. Thank you.
Another major concern that all of us in Vermont have--and
Senator Leahy has been working on this all the time he has been
in the Senate--is to have a clean lake. Of course, that is
affected by phosphorus and nitrogen levels. What is the policy
of the EPA with respect to working with the state to try to
establish a sensible plan that protects, in the case of
Vermont, Lake Champlain?
Ms. Jackson. I have made it clear that EPA is not in the
business of taking over State Nutrient Programs. Phosphorus
nitrogen pollution is significant. It is impacting our areas.
But EPA's job is to review state work and work in partnership,
collaborate as much as we can, because although we have an
oversight role, we simply don't have the resources and are not
nimble enough to do what a state can do.
Mr. Welch. Another issue brought up to me by farmers, and
this is a real practical problem, is the one of spray drift. If
someone sprays, they are apprehensive--a neighboring farm that
is, say, organic is apprehensive about what the effect will be
on them. That is just a very difficult practical problem. How
does the EPA see itself proceeding in that area?
Ms. Jackson. It came to my attention that words that had
been discussed for possible inclusion on a label would set a
standard of no-spray drift. I have made it clear, and we have
been working since as an Agency, to make sure that that is not
the impact. To change the words, to work with state ag
departments. Listen, nobody wants spray drift. No one wants
pesticides anywhere except where they are supposed to go. So,
of course, we want to see it minimized, but we don't want to
set a standard people can't meet.
Mr. Welch. Thank you.
I want to step back just a minute to get your advice. Tom
Davis, who is the former Chairman--Republican Chairman of the
Oversight and Government Committee, and someone who testified
before that committee just the other day--and who is an
extremely capable legislator--suggested that when it came to
saving money in consolidating programs, there is a lot of
things Congress could do. But one of his recommendations was
that we look in the mirror, because he pointed out that there
are many different committees of jurisdiction that pass a bill,
in this case on, say, job training, and write it so that the
committee thereon has jurisdiction. As a result, you get
duplication.
One of the questions I have for you is would there be a
better way for us in Congress to pass legislation on a given
topic that would actually at the end of the day make it easier
for the Administrator to administer, and for those who are
going to be subject to the legislation we pass to deal with the
regulatory and legal process?
Ms. Jackson. Well, certainly I know that myself and some of
my fellow Cabinet members are subject to jurisdiction of
numerous, numerous committees. I would not comment on Congress
doing its business except to say I actually welcome oversight
even from committees that don't have direct jurisdiction on
issues because, as we heard here today, it is an opportunity to
talk about facts; to really, instead of talk past each other,
to speak to each other.
So jurisdiction is one thing. And I know that is going to
be a very important issue when you look at trying to make
government efficient. But it is also important that we find
opportunities to talk to each other.
Mr. Welch. Thank you. And I yield back.
The Chairman. The gentleman's time has expired.
I would serve notice to my colleagues in the speaking
query, we have Mr. Southerland, Mr. Crawford, Mrs. Schmidt. We
have Mr. Neugebauer, Mr. Ribble, and Mr. Thompson.
With that, I turn to Mr. Southerland.
Mr. Southerland. Thank you, Mr. Chairman. I appreciate it.
Administrator, thank you for being here today. I know it
has been a long day with our votes. I wanted to ask and inquire
a little bit more.
I am from Florida. I represent Florida's Second
Congressional District. There is great concern. I understand--I
was not here for the testimony--but I understand that
Congressman Rooney had some questions regarding the numeric
standards that we are struggling with in trying to prepare for
what is coming. I am curious because I am hearing from our
constituents, farmers as well as municipalities around the
district.
As far as the science, I know that the Chairman had a
three-step requirement as far as the position that this
Committee would take regarding rules that--things we are
looking for. One of those was science. Another was economics
and was it legal. But as far as the Science Advisory Board, I
understand that the EPA Science Advisory Board has your
blessing to explore deeper into these requirements regarding
canals, coastal waters, and estuaries. And I wanted to get your
thoughts, a little bit more definitive statement by you, about
flowing waters and having the SAB expand their examination of
these requirements in the area of flowing waters.
Ms. Jackson. Can you be a little bit more specific?
Mr. Southerland. Does the Science Advisory Board have your
blessing to be able to examine deeper and further into the
effects of these standards in the areas of flowing waters?
Ms. Jackson. I believe our charge to the independent
process, the Science Advisory Board, has been related to
estuaries. It is what I committed do when I met with the
delegation, that we would take a look at the science of
estuaries, because there was still concern about setting those
standards.
Mr. Southerland. But as far as flowing waters--and I know
that canals, coastal waters, and estuaries--but as far as any--
do they have your blessing to examine all waters affected by
this standard?
Ms. Jackson. No. The charge didn't include the inland
waters. Those are the standards that have been promulgated and
now have been delayed for 15 months. I think there is about 13
months left on that.
Mr. Southerland. So if they wanted to go into the flowing
water issue, they would be allowed to do that.
Ms. Jackson. They have a charge. We charge the Science
Advisory Board. We ask them to look at certain scientific
questions. Their charge has been for estuaries, coastal waters.
Mr. Southerland. Right. I guess my question is: Would you
charge them then to examine flowing waters?
Ms. Jackson. If you mean by that inland waters, then those
standards have already been done. They were based on the
science of the Florida Department of Environmental Protection.
And what we are doing right now is working with them not on the
science, but on issues around implementation. What happens when
Florida has already made a standard like in the lower St.
Johns; does that take the place of the nutrient standard? Those
kinds of issues.
Mr. Southerland. I want to ask, second, and I know I am
running out of time here, I want to ask regarding the economic
impacts of these standards. I am concerned because I hear
various facts. First of all, has EPA done, in your opinion, the
proper economic effects to agriculture in the State of Florida
with these standards being implemented?
Ms. Jackson. We have done an economic analysis. We have
come up with our cost estimates. In fact, the impact to
agriculture is not particularly great. Much of the high costs
we are seeing in some estimates are based on the need for
reverse osmosis for every single effluent from every single
municipality. We do not see a need for reverse osmosis. That is
a very expensive technology, and we do not believe the science
nor the standards will require that.
Mr. Southerland. So as far as the studies that we are
getting from the Department of Agriculture that talk about the
cost, the total initial cost, of Florida agriculture that go up
to as high as $3 billion, you challenge that?
Ms. Jackson. I would say I don't think we are in a place
where we agree. But I also believe that by continuing to talk--
and we have been working pretty hard with the Florida DEP on
this--I think we can get to a place where we can all look at
the numbers and agree on the assumptions that are made. It
depends on the assumptions.
But I will say this: I do not agree that reverse osmosis is
needed to meet these standards. And that is what is driving the
high cost estimates that I have seen.
Mr. Southerland. But would you agree that the
implementation of this rule without knowing the economic
ramifications is reckless at best, and we would hurt people
that--and these same studies suggest that upwards to 14,000,
15,000 agriculture jobs affected in the State of Florida.
Clearly, that has to provide some concern on your part.
Ms. Jackson. Absolutely. I do not want the people of
Florida, agriculture, anyone in Florida to see these standards
as onerous to that degree where it would harm the economy. I do
think the 15 month delay, part of that was intended so that we
could work with the Florida Department of Environmental
Protection. They have done excellent work to show on the ground
how these will really play out. The idea of allowing people to
substitute in other standards that they have already worked on
to the extent that they are equivalent makes great sense.
The Chairman. The gentleman's time has expired.
The chair now turns to the gentleman from Massachusetts for
5 minutes.
Mr. McGovern. Thank you, Mr. Chairman. I want to thank
Administrator Jackson for being here; and her staff.
This feels like an episode of Survivor. It has been a long
hearing so far. But I am new to this Committee, and I guess I
would be considered an urbanite because I live in the City of
Worcester, Massachusetts. I have heard and dealt with EPA in a
number of areas. I have heard from a lot of farmers in the
Commonwealth of Massachusetts and across the country about
their concern about regulation and, more specifically, about
the cost of implementing regulation and change. I guess there
is this kind of natural tension between putting a mandate
forward and then the cost that is associated with people
complying with that.
I just think it is important the record reflect that these
aren't just kind of arbitrary mandates or regulations. We could
question whether they are necessary, but the intent of this is
to basically improve our environment and better protect our
citizens.
Some of my colleagues have raised their concern about the
potential costs of air quality or clean water standards. But,
it is important to note that peer-reviewed science shows that
dirty air and water have significant health costs to Americans
across the country.
While we need to figure out a way to help farmers and small
businesses comply with some of these regulations, I have an
issue with phosphorus standards in one of my communities. It is
very, very costly. People don't dispute the science, but in
this economy how do you comply, and how do you comply in a way
we don't put farmers out of business? So that is a concern that
we are going to have to try to figure out. Maybe we can have
some suggestions on how to help people make the transitions and
comply better.
I would like to have you discuss the public health benefits
of ensuring that we have reasonable clean air and water
standards, because, to me, that is what all this is about. I
think every one of us here is dedicated to clean water and
clean air; the challenge is how do we comply. But, it is
important that the record reflect why we are doing all this
stuff.
Ms. Jackson. Right. Thank you, Mr. McGovern.
EPA's mission is to protect human health and the
environment. I think we all have agreed several times in this
Committee that everyone is for a clean environment. I think
most Americans see it as part of our citizenship that we have
clean air and clean water.
We just released a study last week. It was a required study
looking at the Clean Air Act amendments just since 1990. By
2020, I think it is $20 trillion in health benefits, those are
avoided; hospitalizations avoided, asthma attacks, fewer
premature deaths, hundreds of thousands of fewer premature
deaths, because of our work under the Clean Air Act. And it is
important to remember that all that happened while our GDP was
going up, up, up. So, in general, not only do we pay for
ourselves $30-$40 to $1, but we are an investment. It is almost
like preventive medicine.
The Clean Water Act, I have done a bit of international
traveling. One of the Members mentioned it earlier. I think we
should not underestimate the strategic opportunity for our
country in clean water. We are blessed in this country to have
an abundant supply of clean water. We just have to be good
stewards of it. Although EPA does a lot of regulation, we also
do a lot of investment through the State Revolving Funds, our
319 Program, the U.S. Department of Agriculture's conservation
programs, and water programs, in trying to help communities
comply. But I also want to align myself. I understand that cost
is very important, especially in small communities. It is
something that we work very hard on the ground to try to work
with those communities, and I am certainly not saying our work
is done.
Mr. McGovern. I appreciate that. I wanted to ask the
question because sometimes there is this impression that there
are bureaucrats who have nothing to do who come up with
regulations and mandates just because they can. It is important
that people know that there is a science there. We can dispute
the science, and we can argue about whether or not the
regulation is the right regulation, or the cost-benefit, but
there is a reason why EPA moves forward on this stuff, and that
is basically to try to protect the health and well-being of our
citizens and protect our environment. I appreciate that.
On the cost stuff, that is something we are going to have
to grapple with, because the State Revolving Funds aren't big
enough to deal with all the projects. In small communities
there is a need for grants. Small farms asking to comply with
some of this stuff, they don't have the money, they go out of
business. So that is something that we are going to have to
deal with as well.
Anyway, I appreciate you being here, and I appreciate the
work that you do, and I appreciate the work of your staff, too.
Thank you.
The Chairman. The gentleman's time has expired.
The chair now recognizes the gentleman from Arkansas for 5
minutes. Mr. Crawford.
Mr. Crawford. Thank you, Mr. Chairman.
Administrator Jackson, I will be brief due to the lateness
of the hour. I will be quick.
I represent a district that is the number one rice-
producing district in the United States. We have more rice
acres in my district than any other place in the United States.
You may or may not know rice is produced in standing water for
a period of 45-60 days, 6-8 inches of standing water. Are rice
fields subject to regulation under the Clean Water Act?
Ms. Jackson. Active agriculture is not. Discharges from
those fields could be, sir. I would have to double-check that.
Agriculture in that way is not, although the new pesticide
requirements could affects rice farming.
Mr. Crawford. If I may, could you submit those for the
record in the future? It would be a big help.
I want to address a question I addressed to the Secretary
of Agriculture a few weeks back in a hearing. I didn't receive
a satisfactory answer from him. I am hoping you can help me on
this. At the last minute I asked Secretary Vilsack about the
specific means of communication in place between the Department
of Agriculture and your department. Unfortunately, he was not
able to provide this Committee with a satisfactory answer, and
I am hoping you can. Can you speak to my concerns? Is there any
kind of a protocol or liaison that exists between EPA and USDA?
Ms. Jackson. Yes, sir. He is sitting right over my left
shoulder. That's my ag adviser, Larry Elworth.
Mr. Crawford. That is a big help, because I couldn't get
that answer from the Agriculture Secretary.
What dialogue are you having right now with ag producers
before developing a new regulation or guidance?
Ms. Jackson. Our dialogue is significant, and it has
increased, thanks in part to Larry's relationship. I have a
good personal relationship with Secretary Vilsack, with Tom,
and it is my belief that we are partners in trying to do many
of the same things. And oftentimes they have resources and
understanding that really makes a difference. I think the
ethanol rule was a perfect example of that. Without the USDA's
input on crop yields, we would have come to a very different
result.
Mr. Crawford. So in the role of liaison, your colleague
behind you there, he basically facilitates dialogue between not
only USDA and your Agency, but also with farmers?
Ms. Jackson. Yes, sir, with grower groups. I have met with
several. Tom and I have done joint meetings with many of the
commodities groups where I am going to be going out as I
committed to earlier and doing a lot more direct communication
myself. My staff does. He is out all the time. We also have an
advisory group--an agricultural advisory group--that Larry
works with. They are a Federal FACA that advises us on
agriculture policy as well.
Mr. Crawford. And what is the tone from the farm
population? Because I have to tell you, every farmer that I
have talked to in the last year and a half has been very, very
upset at the nature of the regulatory burden they are facing
with respect to EPA. Can you gauge a tone from the farm
community?
Ms. Jackson. Well, I take the expertise of this Committee
in representing its constituents very seriously, and we need to
improve. I think we are going to, because when we talk about
what is really happening and get out there and establish lines
of communication, it is always better than not.
So, yes, there is fear and concern. Some of it is grounded;
some of it is perception. Some of it might be based in a real
case. And you have to deal with those on the ground where you
find them.
Mr. Crawford. Thank you. Nothing further. I yield back.
Ms. Jackson. Sir, I just got an answer on the rice
question. Rice water is considered irrigation return flow and
is exempt from the new pesticide water permit.
Mr. Crawford. Thank you.
Can we count on that for the foreseeable future.
Ms. Jackson. Yes, sir. But if you want to submit those
questions for the record.
Mr. Crawford. I appreciate that. Thank you.
The Chairman. The chair now recognizes the gentlelady from
Ohio, Mrs. Schmidt, for 5 minutes.
Mrs. Schmidt. Thank you, Mr. Chairman.
And thank you, Administrator, for being here.
My first question is a follow-up to Chairman Lucas'
regarding the Biological Opinions under the Endangered Species
Act. Could you clarify for us what your plans are regarding
external review?
Ms. Jackson. Yes, I am happy to.
Just today I signed a letter to ensure good science in the
consultation process. So EPA, USDA, DOI and Department of
Commerce has asked the National Research Council, which is part
of the National Academy of Sciences, to provide us with
independent advice on certain scientific and technical issues
that arise as we work to meet our responsibilities on
endangered species.
We are asking the NRC, the National Research Council, to
address questions such as what constitutes best available
scientific data, best scientific methods for evaluating
pesticides' exposures and effects, and other issues.
Mrs. Schmidt. Thank you.
A follow-up question to Congressman Gibbs regarding the NCC
v. EPA, the April 9 deadline, and your asking for an extension.
Have you received that extension?
Ms. Jackson. Not to my knowledge, no, ma'am.
Mrs. Schmidt. If we don't receive that extension, what are
the farmers to do by April 9?
Ms. Jackson. Well, if we don't receive an extension, then
we are under order to get a permit out, and certainly this is
not our preferred path because we think we have some more work
to do on not only Biological Opinions on endangered species,
but with the states.
Mrs. Schmidt. Okay. I would like to turn to another issue,
one that greatly concerns greater Cincinnati and has for some
time, and it is bed bugs. It is not a comfortable issue.
Administrator Jackson, the EPA held a national bed bug summit
in April 2009 and again in February 2011 with the goal of
reviewing the current bed bug problem and identifying actions
to address it. While I agree with the intent of the summit and
to some of the proposals, it seems as though the EPA is almost
exclusively focused on outreach and prevention. Outreach and
prevention are worthy and laudable goals, but it does nothing
for people who actually have the problem now. Many of these
people are living on fixed or lower incomes.
For an example, I had an individual in my district who had
bed bugs in his couch. He couldn't afford what it is going to
cost, about $5,000, to eradicate them now, and so he used
rubbing alcohol on the couch, and then he lit a cigarette. He
no longer has a problem. He no longer has a couch. This is a
real story.
So what we had was a section 18 exemption, which allowed a
product to be used in those cases and for bed bugs that were
resistant to other issues. Now that extension seems to be off
the table.
My question to you is: What do we do with this growing
problem? It is not just in Cincinnati, but New York City,
Washington, D.C., and throughout the United States.
Ms. Jackson. It is a growing problem, Mrs. Schmidt. EPA's
position--what we were asked to do was review a section 18
emergency exemption for Propoxur. EPA scientists reviewed it;
reviewed it against the law, especially the Federal Food
Quality Protection Act, which is about children's health, and
determined that we could not make a finding of safety for
general use of Propoxur to deal with bed bugs. We did offer to
the state that if there with limited uses, places like senior
citizens homes or nursing homes where there weren't children
residing, that might be an appropriate use.
Mrs. Schmidt. That is good to know. But, again, let me
follow up. The way we can now eradicate bed bugs is take a
home, tent it, make sure that we don't have any air flowing
through, and then heat that home between 130-150, interrupted
for 15 minutes. I dare say that is not safe to an infant. So
what we are doing now isn't safe for children either.
Ms. Jackson. They wouldn't be in the residence at the time.
Mrs. Schmidt. How do we know? There is no guarantee.
I will go on to another question.
My other question has to do with a letter that my
colleagues and I sent you regarding the EPA's draft pesticide
registration notice, 2010-X, entitled, False or Misleading
Pesticide Product Brand Names. The proposal would require
registrants of consumer pesticide products to change trademark
brand names if they contain words that EPA considers to be
misleading, such as ``pro'' or ``green,'' even though the
Agency has previously approved these names. These products have
been thoroughly evaluated through the EPA's rigorous pesticide
registration process, and many of these products have now been
on the markets for decades.
What evidence does the EPA have to suggest that consumers
are confused by pesticide product brand names? Many of the
potentially affected products are decades old and familiar to
consumers.
In his response to the letter, Assistant Administrator
Owens stated: The EPA believes that only a very small number of
products will be affected by a final PR notice. And the EPA,
``believes that there are very few registrants, if any, that
would actually need to change their product names, and that no
significant adverse impacts should occur to the marketplace.''
However, an industry estimate suggests that proposals would
impact more than 5,000 currently registered pesticide products
and result in a potential loss of approximately $2.5 billion in
brand equity.
What analysis did EPA conduct to support the conclusion
that only a very small number of products would be affected?
Can you explain the discrepancy between the EPA's prediction of
the proposal's affect and that of the industry?
The Chairman. The lady's time has expired. The witness may
answer the question.
Ms. Jackson. I did commit at a hearing, I believe, last
week to Mr. LaTourette, who asked a similar question, to review
the question again. He didn't ask as detailed a question as
you, ma'am. So I will get you an answer for the record to a
very long question. But I understand the issue, and I am happy
to take a look at it in general, especially any economic
ramification.
Mrs. Schmidt. Thank you.
The Chairman. The gentlelady's time has expired.
Mr. Neugebauer, who is recognized for 5 minutes.
Mr. Neugebauer. Thank you, Mr. Chairman. Thanks for holding
this hearing.
Ms. Jackson, thank you for being here.
A little secret here. The reason I came to Congress is
because of EPA. I have been a land developer, small home
builder, and what happened during my tenure in home building is
I watched the EPA in the Clean Air and Clean Water Act be
stretched from its original intent to way beyond what I think
the original intent of that legislation was. We were out
spending thousands of dollars stringing silt fence up to keep
water from running off into bar ditches in west Texas; that
what used to be a definition of the Waters of the United States
went from rivers and streams and lakes to a bar ditch in west
Texas or a casual water indention in a pothole.
I am very concerned, and I appreciate the fact that you
mention that you want to make scientific-based decisions. And I
believe you said you do cost-benefit analysis. I assume you do
that for every rule that you put out, and I assume that you put
out the findings and the supporting data and all of the models
that are behind the analysis; is that correct?
Ms. Jackson. Yes, sir, to the best of my knowledge.
Different statutes require different amounts and kinds of
analysis, but we do do them.
Mr. Neugebauer. For the last 50 rules that you put out, I
would like to see the supporting data that you put behind
there. Was that data available for comment as well on the
studies, or did you just report the results of the findings?
Ms. Jackson. I am happy to make that available. I am sure
it was publicly available.
Mr. Neugebauer. I would like to see that, because one of
the things that I think what you heard today--and one of the
things about speaking last is everything that has been said has
pretty much been said. But, what you hear today is a grave
concern that the Clean Water Act and the Clean Air Act have
been expanded way beyond what their initial intent is, and that
there has become a huge drain on the economy in our country
because a lot of us believe that these rules and regulations
have gone way beyond their intent, but also that the cost-
benefit analysis is not there.
Particularly I have a concern with this Administration when
the Congress has decided not to take up greenhouse gases that
all of a sudden EPA decided that they would interpret the Clean
Air Act as giving them jurisdiction over there.
So what has happened is that the court system, both from
some very judicially active judges and some very active
environmental groups, have taken these two Acts to levels that
no one ever anticipated. So what I have finally come to the
conclusion is that it is time to repeal both of those bills,
both of those Acts, and start over, because evidently the
definitions within those Acts were so vague that they have been
over-interpreted so many times that I am not sure that we can
fix it by going back and doing something piecemeal.
Now, I am for clean air. I am for clean water. Everybody on
this panel is. But we are at a tipping point in this country
where I believe that the environmental enforcement, the
environmental laws, have superceded the rights of--many
individual property rights of individuals in this country; that
it is a huge drain on our economy in that--I know there is no
telling how many--it is probably trillions of dollars that a
lot of these policies are costing us. And yet I am not sure
that all of the decisions that have been made have been done on
a scientific basis. What a lot of my colleagues, including
myself, feel like is that we decide what we want the policy to
look like, and we go find the science to back it up.
So what would be your opinion on let us start off with a
clean piece of paper, start off with the technology that is
available today that wasn't available when these two Acts were
put in place? Because when you look at what we have done with
the environment, we have made huge advancements in the control
of water pollution and air pollution since those two Acts were
enacted.
Ms. Jackson. I believe that both of those Acts--the Clean
Air Act; the benefits of the Clean Air Act for Americans'
health is projected to reach $2 trillion in 2020.
Mr. Neugebauer. Where did that data come from?
Ms. Jackson. That is an EPA report that was required to be
produced.
Mr. Neugebauer. Was this internally, or is there external
verification of that study?
Ms. Jackson. That study was up for public comment for
almost a year.
Mr. Neugebauer. That wasn't the question. Was it an
internal or third party?
Ms. Jackson. It is an EPA study, sir, but it was up for
comment.
Mr. Neugebauer. I think that is what we are seeing as part
of the problem.
Ms. Jackson. Over time and time again, the benefits of the
Clean Air Act are $30:$1--average $30 to $1 for every dollar
spent.
Mr. Neugebauer. That $30 to $1, is that a study based on an
internal study done by EPA, or is there external verification?
Ms. Jackson. They are not EPA studies alone, sir.
Let me just simply say in answer to your question, I
believe fervently that the reason this country enjoys the air
quality that it does, and the clean water, the plentiful, clean
water that it does, is because we as a country have strong
environmental laws. We lead the world in insisting that, yes,
we can have economic growth, but that we want to protect the
health of our citizens and the legacy of clean air and clean
water. Those Acts are priceless, in my mind.
The Chairman. The gentleman's time has expired.
The chair now recognizes the gentleman from Wisconsin for 5
minutes. Mr. Ribble.
Mr. Ribble. It has been a long day. I am sure it has been
equally long for you. I have never been in a Committee hearing
quite like this where everybody agrees that you have problems.
Typically there is a lot of debate and discussion.
But, anyway, you said earlier when Mr. McGovern was
questioning you that the mission of the EPA is to protect human
health and the environment. I think that is consistent with
your website. But alongside that very nice picture of you by
your bio, it also says: She and a staff of more than 17,000
professionals are working across the nation to usher in a green
economy.
When did your mission change from protecting human health
to economics?
Ms. Jackson. Our mission hasn't changed, sir. The website
says many things, but it says, as you mentioned, that our
mission is for protection of human health and the environment.
Mr. Ribble. So how much time are you spending on a green
economy then?
Ms. Jackson. We believe that our work enables a green
economy.
Mr. Ribble. That is interesting, because many of the people
that I talk to back in Wisconsin would very much disagree.
It also says here that part of it is to renew the public's
trust in the EPA's work. Based on what you have heard today
from both sides of the aisle, Republicans and Democrats, how do
you think you are doing there?
Ms. Jackson. I think we can always do better. But I think
that communication of facts, not myths, is an important part of
that equation, sir.
Mr. Ribble. I can tell you, as someone who has never done
this before--and I appreciated Mr. Tipton's comments, because
the EPA came up on almost every single campaign event I was at.
It got to the point where I had staff members timing how long
it would take before some citizen would start to talk to us
about the EPA. The American people don't trust you. And you
need to hear that, and you need to take that back, because they
don't.
Let us talk a little bit about boiler MACT. Is the boiler
MACT rules that were just promulgated on February 21, are they
a revision of the 2004 Act?
Ms. Jackson. They are not a revision of the Act. They are
regulations, sir.
Mr. Ribble. Revision of the regulations.
Ms. Jackson. I don't believe there were air toxic standards
in place for boilers before we proposed and finalized them in
February.
Mr. Ribble. I am wondering, what assurances can I give the
paper manufacturers and those using coal-fired boilers in my
district that in 2 years or 3 years, after they invest hundreds
of millions dollars and the industry sheds thousands and
thousands of jobs, that you are not going to change the rules
again?
Ms. Jackson. That is a loaded question, sir.
Mr. Ribble. It is an honest question. They are afraid you
are going to do that.
Ms. Jackson. If we hadn't done the regulations--those
regulations have been required since the 1990 Clean Air Act.
They are long overdue. We have finally, in 2011, finalized
regulations that were called for decades ago.
Mr. Ribble. Are you prepared for the loss of jobs that are
going to result?
Ms. Jackson. We have done economic analysis as well as jobs
analysis of that rule, and I am sure you have seen our numbers.
They show that the rule might be neutral or even create jobs,
because they require investments here to deal with toxic air
pollution.
Mr. Ribble. I guess what I am hearing from manufacturers in
Wisconsin is that they may prefer to invest elsewhere, that
they may prefer to invest in other countries because of this
regulation.
Does the air in China ever get over here?
Ms. Jackson. Certainly.
Mr. Ribble. It does, doesn't it? India, same thing. It
shows up over here, doesn't it? And so does it make sense to
promulgate rules that are so difficult to comply with that it
actually incentivizes, encourages businesses to go to countries
where the rules are less stringent?
Ms. Jackson. The boiler toxics rules that we came out with
address mercury, acid gases, particulate matter. They are
called for by the Clean Air Act as a public health
intervention. Even with that, I have to say that the final
rules are--we cut the cost on the final rules by half and still
protect as many or more people under the standards we just
promulgated, sir.
Mr. Ribble. Given what you have heard here today from
virtually everybody in the room, save one, what are you going
to do with this? What is going to change at the EPA to give any
hope back home?
Ms. Jackson. Yes, sir, you can. You can tell them that I
listen. You can tell them that we are going to redouble our
efforts to speak and communicate with people about what is
really going on; to talk about our rules, to reach out. We
think we reach out now, but clearly we can do better. Please, I
welcome any Member of this Committee in helping us get the
facts of what is happening out back in your districts. We
welcome that.
Mr. Ribble. Thank you for being here today.
Ms. Jackson. Thank you.
The Chairman. The chair would note to the Members present,
I still have Mr. Thompson, Mr. Huelskamp, and Mr. Gibson in
line.
Mr. Thompson.
Mr. Thompson. Thank you, Mr. Chairman.
Administrator Jackson, thanks for your time and patience
here this afternoon. I want to go back to earlier at the
beginning of the session, and Mr. Goodlatte and Mr. Holden and
some others were talking about Chesapeake Bay. That is an
important issue for agriculture within my Congressional
district, certainly within the Commonwealth of Pennsylvania.
Pennsylvania, by all indications, has made great progress in
reducing our nitrogen, phosphorus and sediment loads into the
Chesapeake Bay in recent decades. I strongly believe we are on
a path to achieving our reduction goals through, frankly,
conservation practices without the TMDLs. However, it is very
clear to me that the EPA is ignoring this progress and is
arbitrarily moving forward with these new mandates.
New information on the current health of the Bay, frankly,
would be very beneficial to our long-term success and our
process, going forward. Has the EPA done any analysis on what
this progress that we have already made in the Chesapeake Bay--
now, I am talking since we began to invest probably hundreds of
millions of dollars over 30 years; investments all along that
watershed. I guess that is my first question: Is there a
current analysis on that progress, a longitudinal study over
the course of those 30 years?
Ms. Jackson. Sir, one of EPA's--EPA is required to monitor
the health of the Bay and to monitor progress towards agreed-
upon clean-up measures for the Bay. So, yes, were are
constantly doing that. The states are a large part of that.
Different states do it in different ways. But, yes, absolutely.
Mr. Thompson. That is great. I have not seen that data. It
would be very helpful for me.
In fact, I also want to thank you. I know that the Deputy
Administrator will be joining my Subcommittee on Conservation,
Energy, and Forestry, on Wednesday, which includes watershed
jurisdiction. So if he could bring that data, that would be
wonderful to see that longitudinal study just in terms of the
status of the Bay's health over the course of those 30 years.
In your written testimony you strongly suggest that
developing TMDLs for the Chesapeake Bay watershed was, ``a
truly collaborative effort.'' I recognize that the states had
input in crafting the WIPs. The agriculture producers and
associations, it seems to me, were left out of this discussion.
If the creation of the TMDL truly was a collaborative effort,
why are so many farmers, ranchers, and agricultural groups in
the watershed so staunchly against it?
Ms. Jackson. Well, sir, I don't want to speak for them. I
think that they are concerned because they are concerned about
the impacts on their businesses. What EPA's job to do is to
implement the law. We are required--and we were sued--to
implement a pollution diet for the Bay. So what we do is this
is a regional problem. We give each state an allocation and we
say, you figure out the best way to meet your allocation. If
everybody lives by their allocation, the Bay----
Mr. Thompson. And I understand that part. I just would like
to get some clarification. When I say, ``live by the law,'' as
I have spent time with the Constitution, I understand that. I
put myself out there, as 434 other Members, to write law, but
it seems like what you are implementing came out of an
Executive Order. As I look at the separation of powers, we pass
the laws. The Administration is required to implement what we
pass. Much of what came out of the Executive Order in February
2009 regarding this didn't come from the lawmakers, it came
from the Administration.
Has there been a cost analysis done yet in terms of the
impact of this? I know this question has been asked a number of
times, and you have kind of affirmed every time. So I am
assuming that in terms of the cost analysis, cost-benefit
analysis, on agriculture and the impacts on the agriculture
community, that the answer is yes, that this cost-benefit
analysis has been done.
Ms. Jackson. Are you asking about the TMDLs specifically,
sir? They are not regulation, so they do not have a cost-
benefit analysis----
Mr. Thompson. Don't the implementation of TMDLs have a
cost?
Ms. Jackson. The watershed implementation plans, the states
deal a lot with what the costs are and how they are going to
finance the improvements. Many of the costs are actually borne
by municipal treatment works.
Mr. Thompson. I have had township supervisors ask me who
they turn the keys over to on this issue alone. I know it is
outside the jurisdiction of this Committee. And I am sure the
Members on the Transportation and Infrastructure Committee may
have some questions for you on that. But specifically, for
agriculture, to implement a policy that didn't come out of--
frankly, you didn't really answer the question, that the
agriculture community really were not consulted with in
contributing to this. And the state plans--the state had their
plans, and they were rejected. And so TMDLs really are coming
from the EPA. So I would hope that--there needs to be, in fact,
a cost analysis done. What is the cost to agriculture?
You know, we live in a country where we are blessed. We
have the most affordable, highest quality food in the world.
And anything that threatens that is just absolutely wrong. And
as everyone knows, we don't just feed this country, we feed the
world. We are looking at almost seven billion stomachs, going
forward, in the future.
So I am looking forward to meeting the Deputy Director. We
had a very nice conversation today, He seems like a very nice
man, originally came off of a dairy farm in northern New York,
and so I appreciate your time.
The Chairman. Would the gentleman yield before he yields
back his time?
Mr. Thompson. Yes. I certainly yield to the Chairman.
The Chairman. The point about the TMDLs, and I direct this
wherever the appropriate answer comes from. If it is not a
regulation, then what is the enforcement mechanism? If it is
not a requirement, then what does it matter?
Ms. Jackson. The TMDLs are implemented through the
Watershed Implementation Plans developed by the states, sir. So
if you want to think of it as that TMDLs basically allocate an
amount of pollution that is allowable, and then states go back
and live within their means. And the ultimate goal is, to
remind everyone, is a cleaner Chesapeake Bay, which is so
important to so many people who live around here.
The Chairman. But still ultimately it is a regulation that
is in force, that participation is required wherever it came
from, whoever compelled the creation of it, it is a standard
has to be met by your people. Correct, Congressman?
Mr. Thompson. It seems that way. And if I could reclaim my
time. And my question is, if it is not a regulation that comes
from the EPA, if this truly goes back to the states Watershed
Implementation Plans, then the state could choose, without
consequence, not to implement it if the ownership is strictly
on the state, as you have indicated.
Ms. Jackson. No. I don't want to be misunderstood, sir, and
I don't want to mislead you in any way. EPA has a role under
the Clean Water Act to play in cleaning up the Bay. There have
been longstanding goals that have been set and met repeatedly
for Bay cleanup and Bay pollution. The Bay has gotten better on
some indicators, but we still have a long way to go. And the
primary problem is nitrogen and phosphorus, nutrient pollution.
And it comes from all sources, not just agriculture.
The Chairman. Do you direct local governments to produce
these standards that then you compel obligation to follow?
Ms. Jackson. Mr. Chairman, EPA developed the TMDL for the
Chesapeake Bay, it was required to do so, and then turned to
state government to then develop plans to achieve those limits.
The Chairman. So, Director, you develop the standards. And
then you direct the states to implement the standards in regard
to the TMDLs?
Ms. Jackson. In the case of the Chesapeake Bay, yes.
The Chairman. How can we say it is not a Federal
requirement----
Ms. Jackson. It is a requirement that stems from the Clean
Water Act, sir. But what I want to be clear about is that the
Chesapeake Bay is special. It actually has legislative language
about it in particular. So how we handle the Bay is a bit
different. In many states, when you are dealing with nitrogen
or phosphorus pollution, the states are developing those
standards under the Clean Water Act as delegated authority.
The Chairman. The gentleman has, by unanimous consent, 1
more minute.
Mr. Thompson. Thank you.
So with that being the case, then I come back to the fact
that actually I am just shocked that this has been proposed, it
is going to be mandated on the states. It will be imposed on
the agricultural community, let alone other parts of the
communities outside the jurisdiction of this community. And yet
the EPA is not--where I have heard the fact that the EPA has
conducted cost-benefit analysis time and time again this
afternoon, that is not being done with this, with TMDLs. That
is so wrong. I think it is something we need to correct.
Ms. Jackson. It is not entirely accurate, sir. There are
cost-benefit analyses done as part of rulemaking. And I want to
clear up one other--perhaps I am giving you a misperception.
The TMDLs were published in draft. They were subject to public
comment. This is not something that was done behind closed
doors. It wasn't something that was a secret. EPA has been on
the hook for well over a decade to develop these total maximum
daily loads. And it has been a long scientific process, and
there has been a lots of back and forth.
Mr. Thompson. And I look forward to continuing this
conversation with your deputy director again.
And I would ask, in addition to the first documents of the
longitudinal study of improvement on the Chesapeake Bay, that
he also bring those cost-benefit analysis that you referenced
this time that you said have been done. Thank you.
Ms. Jackson. Please, just if I can just make sure that the
record is not incorrect. I did not represent to you that there
are cost-benefit analysis done as we would for regulation.
Mr. Thompson. You said----
Ms. Jackson. I said costs were looked at as part of this
process and as part of the whip process.
Mr. Thompson. But you specifically said there were cost-
benefit analysis as part of the rulemaking.
Ms. Jackson. Yes, sir. But you asked me if I did cost-
benefit. And I pointed out that the TMDLs are different because
they are not a full rulemaking. So I don't want you to leave
with the impression----
Mr. Thompson. Well, they have full impact on rural
communities.
The Chairman. The chair now turns to the gentleman from the
big first district of Kansas for 5 minutes.
Mr. Huelskamp. Thank you, Mr. Chairman.
Madam Administrator, thank you for being here, first. A
couple questions. I do appreciate the other answers, and many
of my questions have been answered but I have one in
particular.
In Parsons, Kansas, there is an ammunitions dump that was
closed during the BRAC closure process in 2005. While the Army
is attempting to close the base and turn it over to local
redevelopment authority, you have attempted to require the Army
and the community to make environmental improvements to the
facility above and beyond those that are statutorily mandated.
From where does the EPA believe their statutory authority
governing these particular demands come?
Ms. Jackson. Sir, let me get you an answer for the record.
I believe that base is part of the Base Realignment and Closure
process, and therefore EPA has been asked to review cleanup
standards as we often do under the BRAC closure.
Mr. Huelskamp. And I appreciate that. It was closed over
5\1/2\-6 years ago. It is my understanding that other Members
of the Kansas Delegation have asked you and your assistants
similar questions on this matter since November and they have
never received a response. And if such authority exists, I find
it difficult to believe that you wouldn't have a response in 3
months. Have you been asked this question before?
Ms. Jackson. I believe we have correspondence on it, sir.
But I don't have my notes here with me.
Mr. Huelskamp. Well, I appreciate that, and we and other
Members of the delegation look forward to an answer after 3
months.
Additionally, I would like to ask one more question about
greenhouse gas regulation. I am sure you understand that
agriculture is certainly an energy intensive business. Whether
it is fuel in the tractor, fertilizer for our crops, or
delivery of the products, agriculture uses a great deal of
energy throughout production. It is my understanding you have
proposed regulations and suggested we need to provide
additional greenhouse gas regulation particularly relating to
CO2.
How do I explain to my farmers that they are expected to
have these additional energy costs that would come out through
a cap-and-trade proposal or such and somehow compete on the
international market?
Ms. Jackson. Sir, please explain to your constituents that
there is no cap-and-trade proposal. There is no proposal that
impacts agriculture. Agriculture is not subject to EPA's
mandatory greenhouse gas reporting rule.
Mr. Huelskamp. No, Madam Administrator. I appreciate that
answer; however, agriculture is an energy consumer. We actually
have a permit for an electrical generation plant in my district
that suddenly the EPA has inserted themselves in the process.
Indeed, your regional administrator put an editorial in the
paper in the middle of that process and demands more
restrictions on climate changing emissions. That impacts
agricultural and our cost of production.
Is it normal for regional Administrators to send out
editorials to newspapers, inserting themselves in the local
permitting process?
Ms. Jackson. I believe that the regional Administrator,
Karl Brooks, was opining on whether or not the permit would
comply with greenhouse gas reductions that might be anticipated
by future rulemaking or by future lawmaking.
Mr. Huelskamp. And who is anticipating those? I presume
those are coming from EPA, and that is what Mr. Brooks had
indicated. So are you telling me there that he was wrong in his
opining that this plant would be impacted by these proposed
regulations?
Ms. Jackson. No, sir. I did not say that. What I said is
that there are currently regulations on the book that govern
construction of new power generating facilities for greenhouse
gas.
Mr. Huelskamp. Exactly. And do you not think that impacts
the cost of production of agriculture?
Ms. Jackson. I do not believe that regulation does not come
without cost. What I have submitted to over and over again in
all regulations, especially greenhouse gases, is that we can
make moderate reductions, mainly through investments in energy
efficiency, that will allow us to start to deal with greenhouse
gas pollution.
Mr. Huelskamp. Earlier in your comments, though, you
indicated those regulations would not impact agriculture. I am
here to tell you they do. Farmers are smart enough to
recognize, if you raise the price of their electricity, it is
going to raise their cost of production. And when America is
the only country seriously considering greenhouse gas
regulations, considering CO2 regulations, and
actually implementing them in this process, as Karl Brooks has
threatened in a letter to the State of Kansas, the newspapers--
I just want you to know, I just can't believe as a regulator
that you would allow a regional administrator to opine in the
middle of permitting process and become a political agent of
the Administration. I mean, did he approve that letter ahead of
time?
Ms. Jackson. Did he? He wrote it, sir, so I assume.
Mr. Huelskamp. Were you aware ahead of time that he was
going to submit this letter to every major newspaper across the
state and insert himself in what is a state process? And you
know it is a state process.
If I might have an additional minute, Mr. Chairman.
The Chairman. Without objection, 1 additional minute.
Ms. Jackson. My understanding of the letter as you are
describing it is it dealt with Federal regulation of greenhouse
gases, and whether the state permit, which is issued under the
delegated authority of the Clean Air Act, was subject to
forthcoming regulations.
Mr. Huelskamp. And, Madam Chair, that permit had not been
issued yet. That had not been issued yet. And I would ask that
the EPA let that permit go forward. It was issued before
January, and I am very concerned for my producers because that
permit is for agriculture-based co-op and covers 66 out of my
69 counties. And most of those owners of that co-op are farmers
and ranchers. And what you do at the EPA, whether or not you
think the cost of electricity impacts the cost of production,
it seriously does and makes us to noncompetitive. Because
Mexico is not going to do this, China is certainly not doing
this, or other competitors in terms of the ag production will
not do this. So thank you, Mr. Chairman.
The Chairman. The gentleman's time has expired. We now turn
to our final Member to be recognized for 5 minutes, the
gentleman from New York.
Mr. Gibson. Thank you, Mr. Chairman.
Madam Administrator, thank you for being here today and
your responses throughout the afternoon. I represent upstate
New York. And the issue that I want to talk to you about is
actually one that has been well trodden throughout the
afternoon. It is the Chesapeake Bay watershed. Just south of
New York State, we have a USGS monitoring site. And from the
reports I have, the water supply that comes from New York from
the origins and the watershed is basically clean, with healthy
levels of nutrient and sediment, below pollution levels.
Therefore, the perception of our farmers--not only in my
district, but I am the only one in New York on the Agriculture
Committee, so I will also speak for those farmers that are
beyond New York's 20th District.
The perception is is that including them in this program is
really not necessary and onerous. And my question to you is,
what research do you have that our agricultural community is
contributing to the problem in the Bay? I will wait for your
response on that before I continue.
Ms. Jackson. Parts of New York are in the Chesapeake Bay
watershed. I don't think that is disputed as a fact. And what I
would like you to know, sir, is that during the process of
looking at this pollution diet and figuring out loads, there
was a lot of discussion with New York State, and particularly
driven by agriculture about their concerns that they not get
loads that were too onerous, especially for agriculture.
Mr. Gibson. And the perception right now, though, is that
the program that is going to go forward is one that is going to
have extensive costs for our state and for what is viewed as
not extensive benefits. So this goes back to the conversation
that you have heard several times from Members, but also is
tied to what an earlier Member talked about, about another look
at these TMDL levels. So, I guess, I pass it back for your
response to that.
Ms. Jackson. Yes. Certainly I know that perception is out
there. I guess what I would like to just simply say is a lot of
work was done to try to adjust New York's load to account for
the fact that you are the furthest away from the watershed. And
simply put, it is sort of human nature. Of course, the benefits
for the Chesapeake Bay are hard for New Yorkers, especially
upstaters, to appreciate because you are far away. And I
certainly respect that and appreciate that.
Mr. Gibson. But the other piece of this is when you look at
the cleanliness, the healthiness of the water as it moves from
New York, we think we are doing darned well when you look at
nitrogen levels. So to include us in this program from the
perspective of our farmers, they don't get this. They view it
as yet another attempt from the United States Government to
step on them and to really be an impediment to their
profitability.
Ms. Jackson. So some of the adjustments to New York's load
was in recognition of the reductions that are coming from the
agricultural sector already, in some part, due to economic
conditions and in other parts, due to work that is being done.
So there is an appreciation that New York's contribution here
is discounted, if you will.
Mr. Gibson. Well, I look forward to staying engaged with
your office. I also thank you for what you are going to do and
what you are doing for Nassau and Rensselaer County. I yield
back.
The Chairman. It appears all Members of the Committee have
had an opportunity to be recognized for 5 minutes. Before we
would adjourn, I would be remiss if I did not thank
Administrator Jackson for 3+ hours of her time and her insights
in what probably is going to be an ongoing dialogue for some
time. Thank you, Administrator.
Under the rules of the Committee, the record of today's
hearing will be remain open for 10 calendar days to receive
additional material and supplemental written responses from the
witness to any questions posed by the Member.
This hearing of the Committee on Agriculture is adjourned.
[Whereupon, at 5:52 p.m., the Committee was adjourned.]
[Material submitted for inclusion in the record follows:]
Supplementary Information by Hon. Lisa P. Jackson, Administrator, U.S.
Environmental Protection Agency
During the March 10, 2011 hearing entitled, Hearing To Review the
Impact of EPA Regulation on Agriculture, requests for information were
made to EPA. The following are their information submissions for the
record.
Insert 1
Mr. Gibbs. . . . I want to follow up. I am a little concerned
in the Florida situation, I am learning about that, and as you
know, Florida is where all the phosphorus as a major crop
nutrient comes from. And if we don't get it from Florida, I
guess the other sources would be Morocco, Saudi Arabia and
China, which would severely increase the cost to our producers
across the United States.
My understanding, there are some permits that have been
lingering for several years to increase the mining capacity in
Florida for that. So I have a general concern about permits
not--I guess it would probably be section 404 permits or
whatever they are, to move forward with those operations. And
then, of course, I follow that a little bit more with the
unprecedented action of the EPA here recently of revoking a
permit after there was final approval done after 3 years. I
know the EPA, you will probably say it was a veto, but it was a
revocation, and I think that is unprecedented.
So I would like a comment on what is happening in our
phosphorus-mining operations in Florida that supply nutrients
to our American farmers.
Ms. Jackson. Sir, I would have to get that answer for you
because I don't know the status of any permit cases down there.
I haven't had any personal involvement.
EPA and other Federal agencies recognize the importance of
phosphate mining in sustaining American farmers. We are working closely
with the U.S. Army Corps of Engineers and the State of Florida to
ensure that permitting decisions for proposed operations in Florida are
made in a coordinated, timely, and environmentally protective manner.
Several permit applications have been submitted to the U.S. Army
Corps of Engineers under Section 404 of the Clean Water Act for
phosphate mining operations in central and southwest Florida. The three
specific relevant permit applications (and their Department of the Army
file numbers) are CF Industries' South Pasture Extension (SAJ-1993-
01395), Mosaic Fertilizer LLC's Four Corners Surface Tract (SAJ-1995-
00794), and Mosaic Fertilizer LLC's Ona Mine (SAJ-1998-02067). To help
coordinate the environmental evaluation of these permit applications
consistent with the National Environmental Policy Act, the Corps began
formal development of an areawide Environmental Impact Statement (EIS)
in February 2011, in coordination with Federal agencies and the State
of Florida. The EIS will help assess the human health and environmental
impacts of these proposed operations, identify possible alternatives,
and provide significant opportunities for public involvement. EPA is
actively participating in the Corps-managed effort as a cooperating
agency. EPA's contributions to the EIS will focus largely on water
quality and other environmental effects within EPA's areas of expertise
and responsibility. The Florida Department of Environmental Protection
is also participating in the effort.
The agencies anticipate completing the draft EIS by October 2011
and the final EIS by August 2012. When complete, the EIS will provide
the Corps, other Federal and State agencies, and the public with a
better sense of the environmental effects of the proposed phosphate
mining operations. This will enable permit decision-making to move
forward on these applications.
Additional information on the EIS effort is available at http://
www.phosphateaeis.org/index.html.
Insert 2
Mr. Schrader. . . . In that January 12 letter, you also
committed to the scientific review of the biomass combustion,
and you ensured, I guess the quote would be, ``will ensure that
partners within the Federal Government and scientists outside
of it with relevant expertise, claiming equal roles in the
examination,'' kind of getting at some of the background
questions we have had here, the third-party issues. This
scientific review will later be followed up by the rulemaking.
When can we expect to see an explanation how you are going to
reach out to outside parties and when the scientific process
will start?
Ms. Jackson. Sir, let me get you a schedule through the chair
for the record. But I will commit that we are looking at an
independent process, and we have standards for peer-review and
scientists. So that will be a very public process as well.
EPA is in the process of conducting a study of the scientific and
technical issues associated with accounting for biogenic carbon dioxide
(CO2) from stationary sources. That study will include both
a review of the technical information, and the description and
development of specific accounting options for biogenic CO2
emissions from stationary sources.
We have requested that the EPA Science Advisory Board (SAB) conduct
an independent peer review of the study. Thus, the SAB will serve as
the "independent scientific panel" cited in the January 2011 letters
from the Administrator to Members of Congress announcing our plans to
address biogenic CO2 from stationary sources and the March
2011 proposed rule to defer biogenic CO2 emissions from the
PSD and Title V programs (76 FR 15249).Members of the public are
invited to provide input in the process by: (a) nominating candidates
to the SAB panel; (b) commenting on the list of SAB candidates; and (c)
providing written and oral comments on the EPA technical document that
is submitted for the SAB's consideration.
Schedule
On April 27, 2011, the SAB published a "Request for Nominations of
Candidates for a SAB Panel on Accounting for Carbon Dioxide
(CO2) Emissions from Biogenic Sources" (76 FR 23587).
Nominations for inclusion on this panel are solicited from members of
the public and are due by May 18, 2011. From the nominees identified by
respondents to this Federal Register notice (termed the "Widecast") and
other sources, the SAB Staff Office will develop a smaller subset
(known as the "Short List") for more detailed consideration. The Short
List will be posted on the SAB website at http://www.epa.gov/sab and
will include, for each candidate, the nominee's name and biosketch.
Public comments on the Short List will be accepted for 21 calendar
days. During this comment period, the public will be requested to
provide information, analysis, or other documentation on nominees that
the SAB Staff Office should consider in evaluating candidates for the
Panel.
Insert 3
Mr. Neugebauer. For the last 50 rules that you put out, I
would like to see the supporting data that you put behind
there. Was that data available for comment as well on the
studies, or did you just report the results of the findings?
Ms. Jackson. I am happy to make that available. I am sure it
was publicly available.
Please see attached chart including links to each rule's docket
where the requested supporting data can be found.
EPA's 50 Most Recent Final Rules, up to and including March 10, 2011
[This list includes the fifty most recent final rules published prior to or including March 10, 2011, that were signed by EPA's Administrator and include regulatory text.]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
No. Publication Date Docket ID RIN Title Link to Docket on Regulations.gov
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1 March 9, 2011 EPA-HQ-OAR-2008-0708 RIN 2060-AQ78 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants for Reciprocating #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
Internal Combustion Engines 0708
2 March 4, 2011 EPA-HQ-OAR-2009-0517 RIN 2060-AQ77 Updating Cross-References for the http://www.regulations.gov/
Oklahoma State Implementation Plan #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
0517
3 February 22, 2011 EPA-R07-OAR-2010-0932 Not Assigned Approval and Promulgation of http://www.regulations.gov/
Implementation Plans, Kansas: Prevention #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-R07-OAR-2010-
of Significant Deterioration, Greenhouse 0932
Gas (GHG) Permitting Authority and
Tailoring Rule Revision, Withdrawal of
Federal GHG Implementation Plan for
Kansas
4 February 17, 2011 EPA-HQ-OAR-2010-0239 RIN 2060-AP48 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants: Gold Mine Ore Processing #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
and Production Area Source Category, and 0239
Addition to Source Category List for
Standards
5 February 3, 2011 EPA-HQ-OAR-2007-0562 RIN 2060-AQ30 Additional Air Quality Designations for http://www.regulations.gov/
the 2006 24-Hour Fine Particle National #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2007-
Ambient Air Quality Standards, 110(k)(6) 0562
Correction and Technical Correction
Related to Prior Designation, and
Decisions Related to the 1997 Air
Quality Designations and Classifications
for the Annual Fine Particles National
Ambient Air Quality Standards
6 January 24, 2011 EPA-HQ-OAR-2006-0406 RIN 2060-AP16 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants for Source Categories: #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2006-
Gasoline Distribution Bulk Terminals, 0406
Bulk Plants, and Pipeline Facilities,
and Gasoline Dispensing Facilities
7 January 20, 2011 EPA-HQ-OAR-2005-0031 RIN 2060-AQ46 Standards of Performance for Fossil-Fuel- http://www.regulations.gov/
Fired Electric Utility Industrial- #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2005-
Commercial-Institutional and Small 0031
Industrial-Commercial-Institutional
Steam Generating Units
8 January 18, 2011 EPA-HQ-OAR-2002-0051 RIN 2060-AQ59 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants From the Portland Cement #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2002-
Manufacturing Industry and Standards of 0051
Performance for Portland Cement Plants
9 December 30, 2010 EPA-HQ-OAR-2010-0107 RIN 2060-AQ45 Action To Ensure Authority To Issue http://www.regulations.gov/
Permits Under the Prevention of #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
Significant Deterioration Program to 0107
Sources of Greenhouse Gas Emissions:
Federal Implementation Plan
10 December 30, 2010 EPA-HQ-OAR-2009-0517 RIN 2060-AQ63 Action To Ensure Authority To Implement http://www.regulations.gov/
Title V Permitting Programs Under the #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
Greenhouse Gas Tailoring Rule 0517
11 December 30, 2010 EPA-HQ-OAR-2010-1033 RIN 2060-AQ67 Determinations Concerning Need for Error http://www.regulations.gov/
Correction, Partial Approval and Partial #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
Disapproval and Federal Implementation 1033
Plan Regarding Texas Prevention of
Significant Deterioration Program
12 December 30, 2010 EPA-HQ-OAR-2009-0517 RIN 2060-AQ62 Limitation of Approval of Prevention of http://www.regulations.gov/
Significant Deterioration Provisions #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
Concerning Greenhouse Gas Emitting- 0517
Sources in State Implementation Plans
13 December 27, 2010 EPA-HQ-OAR-2006-0735 RIN 2060-AP77 Revisions to Lead Ambient Air Monitoring http://www.regulations.gov/
Requirements #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2006-
0735
14 December 27, 2010 EPA-HQ-OAR-2010-0929 RIN 2060-AQ80 Interim Final Regulation Deferring the http://www.regulations.gov/
Reporting Date for Certain Data Elements #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
Required Under the Mandatory Reporting 0929
of Greenhouse Gases Rule
15 December 21, 2010 EPA-HQ-OAR-2005-0161 RIN 2060-AQ31 Regulation of Fuels and Fuel Additives: http://www.regulations.gov/
Modifications to Renewable Fuel Standard #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2005-
Program 0161
16 December 21, 2010 EPA-HQ-OAR-2008-0348 RIN 2060-AO58 Methods for Measurement of Filterable http://www.regulations.gov/
PM10 and PM2.5 and Measurement of #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
Condensable PM Emissions From Stationary 0348
Sources
17 December 17, 2010 EPA-HQ-RCRA-2009-0310 RIN 2050-AG55 Hazardous Waste Management System http://www.regulations.gov/
Identification and Listing of Hazardous #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-RCRA-2009-
Waste, Removal of Saccharine and Its 0310
Salts From the Lists of Hazardous
Constituents & Hazardous Wastes &
Hazardous Substances
18 December 17, 2010 EPA-HQ-OAR-2008-0508 RIN 2060-AQ33 Mandatory Reporting of Greenhouse Gases http://www.regulations.gov/
#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
0508
19 December 14, 2010 EPA-HQ-OAR-2008-0334 RIN 2060-AQ89 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants for Chemical #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
Manufacturing Area Sources 0334
20 December 10, 2010 EPA-HQ-OW-2008-0390 RIN 2040-AE98 Federal Requirements Under the http://www.regulations.gov/
Underground Injection Control (UIC) #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OW-2008-
Program for Carbon Dioxide (CO2) 0390
Geologic Sequestration (GS) Wells
21 December 9, 2010 EPA-HQ-OAR-2010-0133 RIN 2060-AQ16 Regulation of Fuels and Fuel Additives: http://www.regulations.gov/
2011 Renewable Fuel Standards #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
0133
22 December 6, 2010 EPA-HQ-OW-2009-0596 RIN 2040-AF11 Water Quality Standards for the State of http://www.regulations.gov/
Florida's Lakes and Flowing Waters #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OW-2009-
0596
23 December 1, 2010 EPA-HQ-OAR-2009-0927 RIN 2060-AQ00 Mandatory Reporting of Greenhouse Gases: http://www.regulations.gov/
Additional Sources of Fluorinated GHGs #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
0927
24 December 1, 2010 EPA-HQ-OAR-2009-0926 RIN 2060-AP88 Mandatory Reporting of Greenhouse Gases: http://www.regulations.gov/
Injection and Geologic Sequestration of #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
Carbon Dioxide 0926
25 November 30, 2010 EPA-HQ-OAR-2009-0923 RIN 2060-AP99 Mandatory Reporting of Greenhouse Gases: http://www.regulations.gov/
Petroleum and Natural Gas Systems #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
0923
26 November 26, 2010 EPA-HQ-TRI-2010-0006 RIN 2025-AA28 Addition of National Toxicology Program http://www.regulations.gov/
Carcinogens Community Right-to-Know #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-TRI-2010-
Toxic Chemical Release Reporting 0006
27 Novmeber 22, 2010 EPA-HQ-OAR-2009-0443 RIN 2060-AP78 Air Quality Designations for the 2008 http://www.regulations.gov/
Lead (Pb) National Ambient Air Quality #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
Standards 0443
28 November 8, 2010 EPA-HQ-OAR-2010-0142 RIN 2060-AO69 Revisions to In-Use Testing for Heavy- http://www.regulations.gov/
Duty Diesel Engines and Vehicles, #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
Emissions Measurement and 0142
Instrumentation, Not-to-Exceed Emission
Standards, and Technical Amendments for
Off-Highway Engines
29 November 5, 2010 EPA-HQ-OW-2010-0884 Not Assigned Direct Final Rule Staying Numeric http://www.regulations.gov/
Limitation for the Construction and #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OW-2010-
Development Point Source Category 0884
30 October 28, 2010 EPA-HQ-OAR-2010-0109 RIN 2060-A079 Mandatory Reporting of Greenhouse Gases http://www.regulations.gov/
#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
0109
31 October 20, 2010 EPA-HQ-OAR-2006-0605 RIN 2060-AO24 Prevention of Significant Deterioration http://www.regulations.gov/
(PSD) for Particulate Matter Less Than #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2006-
2.5 Micrometers (PM2.5)--Increments 0605
Significant Impact Levels (SILs) and
Significant Monitoring Concentration
(SMC)
32 October 14, 2010 EPA-HQ-OPA-2009-0880 RIN 2050-AG59 Oil Pollution Prevention, Spill http://www.regulations.gov/
Prevention, Control, and Countermeasure #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OPA-2009-
(SPCC) Rule--Compliance Date Amendment 0880
33 October 8, 2010 EPA-HQ-OPP-2005-0327 RIN 2070-AJ74 Pesticide Management and Disposal, http://www.regulations.gov/
Standards for Pesticide Containers and #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OPP-2005-
Containment, Change to Labeling 0327
Compliance Date
34 September 28, 2010 EPA-HQ-OAR-2010-0133 RIN 2060-AQ35 Supplemental Determination for Renewable http://www.regulations.gov/
Fuels Produced Under the Final RFS2 #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
Program From Canola Oil 0133
35 September 22, 2010 EPA-HQ-OAR-2009-0925 RIN 2060-AQ02 Mandatory Reporting of Greenhouse Gases http://www.regulations.gov/
#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
0925
36 September 16, 2010 EPA-HQ-OAR-2010-0270 RIN 2060-AQ18 Technical Amendments for Marine Spark- http://www.regulations.gov/
Ignition Engines and Vessels #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2010-
0270
37 September 13, 2010 EPA-HQ-OAR-2008-0531 RIN 2060-AP23 Restructuring of the Stationary Source http://www.regulations.gov/
Audit Program #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
0531
38 September 9, 2010 EPA-HQ-OAR-2002-0051, RIN 2060-AO15, National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants From the Portland Cement #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2002-
Manufacturing Industry and Standards of 0051
Performance for Portland Cement Plants
EPA-HQ-OAR-2007-0877 RIN 2060-AO42 http://www.regulations.gov/
#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2007-
0877
39 August 20, 2010 EPA-HQ-OAR-2008-0708 RIN 2060-AP36 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants for Reciprocating #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
Internal Combustion Engines 0708
40 August 13, 2010 EPA-HQ-SFUND-2010-0085 RIN 2050-AG58 Cooperative Agreements and Superfund http://www.regulations.gov/
State Contracts for Superfund Response #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-SFUND-2010-
Actions 0085
41 July 20, 2010 EPA-HQ-OAR-2008-0080 RIN 2060-AQ26 Amendments to National Emission Standards http://www.regulations.gov/
for Hazardous Air Pollutants: Area #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
Source Standards for Prepared Feeds 0080
Manufacturing
42 July 12, 2010 EPA-HQ-OAR-2008-0508 RIN 2060-AQ03 Mandatory Reporting of Greenhouse Gases http://www.regulations.gov/
From Magnesium Production, Underground #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
Coal Mines, Industrial Wastewater 0508
Treatment, and Industrial Waste
Landfills
43 June 30, 2010 EPA-HQ-OAR-2003-0146 RIN 2060-AO55 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants From Petroleum Refineries #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2003-
0146
44 June 30, 2010 EPA-HQ-OAR-2008-0708 RIN 2060-AP36 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants for Reciprocating #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
Internal Combustion Engines 0708
45 June 22, 2010 EPA-HQ-OAR-2007-0352 RIN 2060-A048 Primary National Ambient Air Quality http://www.regulations.gov/
Standard for Sulfur Dioxide #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2007-
0352
46 June 15, 2010 EPA-HQ-OPP-2005-0327 RIN 2070-AJ74 Pesticide Management and Disposal http://www.regulations.gov/
Standards for Pesticide Containers and #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OPP-2005-
Containment, Change to Labeling 0327
Compliance Date
47 June 15, 2010 EPA-HQ-RCRA-2005-0017 RIN 2050-AG57 Withdrawal of the Emission-Comparable http://www.regulations.gov/
Fuel Exclusion Under RCRA #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-RCRA-2005-
0017
48 June 4, 2010 EPA-HQ-OA-2004-0002 RIN 2090-AA37 Nondiscrimination on the Basis of Age in http://www.regulations.gov/
Programs or Activities Receiving Federal #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OA-2004-
Assistance from the Environmental 0002
Protection Agency
49 June 3, 2010 EPA-HQ-OAR-2008-0053 RIN 2060-AN47 National Emission Standards for Hazardous http://www.regulations.gov/
Air Pollutants: Area Source Standards #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2008-
for Paints and Allied Products 0053
Manufacturing Amendments
50 June 3, 2010 EPA-HQ-OAR-2009-0517 RIN 2060-AP86 Prevention of Significant Deterioration http://www.regulations.gov/
and Title V Greenhouse Gas Tailoring #!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EPA-HQ-OAR-2009-
Rule Part II 0517
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______
Submitted Questions
Letters and Response from U.S. Environmental Protection Agency
October 28, 2011
Hon. Frank D. Lucas,
Chairman,
House Committee on Agriculture,
Washington, D.C.
Dear Chairman Lucas:
Thank you for the opportunity to respond to your September 8, 2011
letter and the questions for the record following the March 10, 2011,
hearing on the impact of EPA regulation on agriculture. The attached
document has responses for more than 80 percent of the questions. I am
sending this set of approved responses rather than delay the entire
package for the small number of responses still outstanding. The
remaining responses are nearing approval and will be forwarded to you
as soon as possible. I hope that this information is useful to you and
the Members of the Committee.
If you have any further questions, please contact me or your staff
may call Sven-Erik Kaiser in my office at [Redacted].
Sincerely,
Arvin Ganesan,
Associate Administrator.
______
November 30, 2011
Hon. Frank D. Lucas,
Chairman,
House Committee on Agriculture,
Washington, D.C.
Dear Chairman Lucas:
I am completing the response to your September 8, 2011 letter and
the questions for the record following the March 10, 2011, hearing on
the impact of EPA regulation on agriculture. On October 28, 2011 I
responded to your letter with responses for a large portion of the
questions. The attached document has responses for the remaining
questions. Thank you for your patience and again, I hope that this
information is useful to you and the Members of the Committee.
If you have any further questions, please contact me or your staff
may call Sven-Erik Kaiser in my office at [Redacted].
Sincerely,
Arvin Ganesan,
Associate Administrator.
______
December 15, 2011
Hon. Frank D. Lucas,
Chairman,
House Committee on Agriculture,
Washington, D.C.
I am completing the response to the questions for the record
following a hearing before the House Committee on Agriculture earlier
this year. Questions from Congressman Peterson forwarded by the
Committee requested that the EPA provide the Committee with copies of
all documents meeting the following criteria:
(1) A settlement agreement entered into by the EPA;
(2) In response to any civil action, administrative adjudication or
petition for review brought against the EPA or the
Administrator of EPA; and
(3) During the period of January 1, 2006 through March 10, 2011.
On the enclosed CD,* the EPA is providing settlement agreements and
consent decrees entered during this time frame under the environmental
statutes administered by the EPA. In addition, I am attaching a
response to your question for the record in reference to publication of
proposed settlements in the Federal Register for public comment.
---------------------------------------------------------------------------
* The documents referred to are retained in Committee files.
---------------------------------------------------------------------------
Thank you for your interest in this important subject matter. I
hope that you will find these responses informative. If you have
further questions, please contact me or your staff may call Sven-Erik
Kaiser in my office at [Redacted].
Sincerely,
Arvin Ganesan,
Associate Administrator.
______
December 28, 2011
Hon. Frank D. Lucas,
Chairman,
House Committee on Agriculture,
Washington, D.C.
I am responding to questions for the record following the March 10,
2011, hearing on the impact of EPA regulation on agriculture. The
attached document includes responses to questions from Congressman
Schilling that were received after the questions that were responded to
previously. I hope that this information is useful to you and the
members of the committee.
If you have any further questions, please contact me or your staff
may call Sven-Erik Kaiser in my office at [Redacted].
Sincerely,
Arvin Ganesan,
Associate Administrator.
attached responses
Questions Submitted by Hon. Frank D. Lucas, a Representative in
Congress from Oklahoma
Question 1. Are you aware that synthetic gypsum from power plants
is not ``coal ash'' at all--but rather a byproduct of flue gas
desulfurization (FGD) during the ``scrubbing'' process? If it's not
coal ash, why are you including it in the regulations you are
developing?
Answer. The EPA's proposed rule addresses the management of coal
combustion residuals (CCRs) from electric utilities. CCRs and ``coal
ash'' are broad terms that refer to a range of residuals produced from
the combustion of coal, including fly ash, bottom ash, slag, and flue
gas emission control wastes. We are aware of the processes used to
produce synthetic gypsum from FGD materials, and are carefully
considering the comments regarding whether synthetic gypsum derived
from coal combustion residuals warrants regulation.
Question 2. The people who use synthetic gypsum for agriculture now
face a huge regulatory uncertainty because of the coal ash rulemaking.
When do you plan to complete this rule? As you work to determine if
this material should be classified as a ``hazardous waste'', how should
we address parties who are interested in recycling it, but are stuck in
limbo?
Answer. The agency is in the process of reviewing and addressing
more than 450,000 comments received on the proposed coal ash rule. In
addition, the EPA and the U.S. Department of Agriculture (USDA) are
conducting a joint study on the use of flue gas desulfurization (FGD)
gypsum in agriculture. In the preamble of the proposed rule, the EPA
indicated that study should be completed at the end of 2012.
Users of coal combustion residuals (CCR) in agriculture are
encouraged to review the basic guidance provided in the interim report
(Agricultural Uses for Flue Gas Desulfurization (FGD) Gypsum, March
2008, EPA530-F08-009) \1\ pending completion of the study. The report
references several resources for responding to questions including: the
EPA's Industrial Waste Management Evaluation Model (IWEM) and the
chapter on land application (Chapter 7) in the associated Guide for
Industrial Waste Management http://www.epa.gov/epawaste/nonhaz/
industrial/guide/index.htm, the State's department of environmental
protection, department of agriculture, and agricultural extension
service, and the USDA Natural Resources Conservation Service.
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Question 3. Are there ways that the EPA might encourage flue gas
desulfurization (FGD) gypsum use in agriculture to help address water
quality problems caused by degraded soils and excess nutrient loadings?
Answer. The EPA's proposed rulemaking on the management of coal
combustion residuals (CCRs) acknowledges that there are significant
benefits that can be derived from the use of CCRs in agricultural
applications and that the EPA and the U.S. Department of Agriculture's
Agricultural Research Service are engaged in field studies, expected to
conclude in late 2012. The agency did request comments, information,
and data on CCRs that are beneficially used in agriculture, but did not
propose to regulate the beneficial use of CCRs in agricultural
applications. The EPA continues to support the beneficial use of coal
combustion residuals in an environmentally sound manner because of the
important benefits to the economy and the environment.
Question 4. Can you comment on the use of synthetic gypsum to
protect the Chesapeake Bay from nutrient runoff funded by the USDA
Conservation Innovation Grants Program and the projects and studies
underway and planned in the Great Lakes Region for the same effect.
Answer. We support the use of this technology as one approach for
reducing nutrient runoff from agricultural operations through soil
amendments that increase phosphorus adsorption capacity of farmland
soils and buffer treatment to adsorb phosphorus before field runoff
enters the streams and the Chesapeake Bay. Note that this is only one
of many approaches that farmers can take to reduce nutrient losses from
their operations. We have highlighted this approach along with other
cost-effective, proven practices for reducing nutrients from
agricultural operations in the Guidance for Federal Land Management in
the Chesapeake Bay Watershed
(http://www.epa.gov/nps/chesbay502/). Although this document was
developed for Federal lands, it acknowledges that a majority of land in
the Chesapeake Bay watershed is non-Federal land, and also recognizes
that the same set of tools and practices are appropriate for both
Federal and non-Federal land managers to restore and protect the
Chesapeake Bay.
Question 5. Ms. Jackson, you testified before the House Agriculture
Committee. If I could, let me read from your statement. You said: ``As
I'm sure you would agree, Mr. Chairman, facts matter and we all have a
responsibility to ensure that the American people have facts and the
truth in front of them, particularly when fictions are pushed by
special interests with an investment in the outcome. `Let me give you
five examples: `One is the notion that EPA intends to regulate the
emissions from cows--what is commonly referred to as a `Cow Tax.' This
myth was started in 2008 by a lobbyist and quickly de-bunked by the
non-partisan, independent group factcheck.org--it still lives on. The
truth is--EPA is proposing to reduce greenhouse gas emissions in a
responsible, careful manner and we have even exempted agricultural
sources from regulation.' ''
Your statement raises several questions:
What is the basis of your statement that EPA has ``even exempted
agricultural sources from regulation''? Can you cite the place in the
regulation that ``exempts'' agricultural sources?
Question 5a. Are you exempting all agricultural sources or just
some?
Question 5b. Have you exempted any other sectors from the
regulation?
Question 6. What authority does EPA to exempt certain sectors from
the greenhouse gas rule? Where in the Clean Air Act is that authority?
Question 7. The Clean Air Act explicitly states that ``major
sources''--which is any entity that emits or has the potential to emit
more than 100 tons of a regulated pollutant per year--must obtain a
Title V operating permit. Is it your testimony that EPA is exempting
all agricultural sources, regardless of their level of emissions, from
the greenhouse gas regulation?
Question 8. EPA's own figures state that 37,000 farms are above the
threshold of a major source. How can they be exempt under the law?
Question 9. If the basis of your statement is the tailoring rule,
is it not correct to say that this approach only delays--it does not
exempt--certain sources?
Question 10. Do you believe you have the authority to disregard the
100 ton and 250 thresholds in the law that defines major sources for
the Title V and PSD programs?
Answer 5-10. The EPA has established, by rule, a common sense
approach to regulating greenhouse gas (GHG) emissions under the Clean
Air Act (CAA) permitting programs. The rule, known as the ``Tailoring
Rule,'' phases in CAA permitting requirements for GHGs, with only the
largest GHG emitters covered in the initial phases. In these initial
phases, which are intended to last until at least 2016, the EPA does
not expect that agricultural sources are large enough that they will be
subject to GHG permitting under the CAA.
The Tailoring Rule does not take a sector based approach to
exempting sectors from Prevention of Significant Deterioration (PSD) or
Title V permitting requirements. Rather, we set emission thresholds in
the Tailoring Rule that are applicable to all sectors. Sources below
the thresholds have no GHG PSD or Title V permitting obligations
regardless of what sector they are in. Although we did not take a
sector based approach in the Tailoring Rule, our information is that
some sectors have no sources above the thresholds, and thus effectively
are exempted from GHG permitting obligations.
With respect to agricultural sources, the question indicates that
the EPA's own figures state that 37,000 farms have GHG emissions above
the statutory major source threshold. According to our best
information, none of these farms have GHG emissions above the
thresholds of the Tailoring Rule that would trigger GHG permitting
requirements, or even above the 50,000 tpy CO2e level.
The legal basis for the phased-in approach adopted in the Tailoring
Rule is set forth in the preamble to that rule. The purpose of the
Tailoring Rule was to relieve the overwhelming permitting burdens that
would, in the absence of the rule, fall on permitting authorities and
sources. The EPA accomplished this by tailoring the applicability
criteria that determine which GHG-emitting sources become subject to
the PSD and Title V permitting programs. Both the PSD and Title V
provisions establish clear numerical thresholds for applying the
permitting requirements--in general, the Title V permitting
requirements apply to sources emitting 100 tpy and PSD applies to
sources emitting 100 or 250 tpy, depending on the source category. But
under the Supreme Court's directive for how to interpret statutory
provisions (described in the Chevron case),\2\ the EPA must interpret
these thresholds based on what Congress intended them to mean when
applied to the case at hand (i.e., when applied to GHG-emitting
sources), and not necessarily on their literal meaning. The courts have
established three legal doctrines that each make clear that the EPA is
authorized to interpret the permitting thresholds for GHG-emitting by
adopting the phased-in approach of the Tailoring Rule, and not by
adhering to those 100/250 tpy thresholds literally, at least at the
present time. The legal basis for the tailoring rule rests on the legal
doctrines of absurd results, administrative necessity, and one step at
a time due to events.
---------------------------------------------------------------------------
\2\ Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).
---------------------------------------------------------------------------
Question Submitted by Hon. Collin C. Peterson, a Representative in
Congress from Minnesota
Question 1. According to OPM's website, the ``Intergovernmental
Personnel Act Mobility Program provides for the temporary assignment of
personnel between the Federal Government and state and local
governments, colleges and universities, Indian tribal governments,
federally funded research and development centers, and other eligible
organizations.'' The Committee became aware of a situation where EPA
had entered into an Interpersonnel Agreement with a nonprofit, and the
shared employee was lobbying on Capitol Hill for a piece of legislation
involving EPA. How many IPA's are currently active? Is it possible to
determine where EPA employees are currently working?
Answer. As of August 18, 2011, the EPA has 23 employees serving
under the Intergovernmental Personnel Act mobility program. They serve
at the following organizations:
Mississippi Department of Marine Resources
The Nature Conservancy
The Environmental Council of the States
Navajo Nation EPA Superfund Program
The Oregon Extension of Eastern University
California Environmental Protection Agency
Environmental Law Institute
World Resources Institute
Florida Department of Environmental Protection
Puget Sound Partnership (2)
DePaul University
National Wildlife Federation
Lincoln University Graduate Center
Pennsylvania Department of Environmental Protection
Commonwealth of Puerto Rico--Environmental Quality Board (2)
Florida Department of Agriculture and Consumer Services
City of New Haven Office of Sustainability
North Carolina Agricultural and Technical State University
The Clean Air Institute
Navajo Nation Department of Justice
Western States Water Council
Question 2. Recent court decisions have concluded that EPA's
assertion that it has authority under FIFRA to bring a misbranding or
other enforcement action prior to completing administrative procedures
under FIFRA Section 6 based on the failure of the chemistry or compound
to satisfy the requirements of risk mitigation decisions is arbitrary,
capricious, an abuse of discretion, and contrary to law. Please provide
Committee with an expected timeline for completing the administrative
procedures required under FIFRA section 6 for registrants with
chemistries or compounds under risk mitigation review.
Answer. In May 2008, the EPA issued its Risk Mitigation Decision
for Ten Rodenticides (RMD), specifying rodenticide product changes that
must be made to allow for continued use that does not present
unreasonable adverse effects to human health or the environment. On
June 7, 2011, the EPA finalized the RMD, moving to ban the sale to
residential consumers of the most toxic rat and mouse poisons, as well
as most loose bait and pellet products. The agency is also requiring
that all newly registered rat and mouse poisons marketed to residential
consumers be enclosed in bait stations that will render the pesticide
inaccessible to children and pets. The EPA intends to initiate
cancellation proceedings under FIFRA against certain noncompliant
products.
Question 3. We appreciate EPA working with the livestock industry
to collect information about current emissions on today's animal
feeding operations. It was our understanding that the methodology for
collecting the information was approved by EPA is that correct? Is
there a timeline for analyzing this information? How are you engaging
the scientific community to analyze and digest the information
collected by the livestock industry? How will EPA go about using this
information down the road?
Answer. The monitoring methodologies used in the National Air
Emissions Monitoring Study were identified and selected by a broad
group of stakeholders that included representatives from the EPA, the
U.S. Department of Agriculture, the animal feeding operation (AFO)
industry, state and local air agencies, and environmental groups. All
stakeholders had a part in the development process, and the EPA
approved the final methodologies. On January 19, 2011, the EPA issued a
Call for Information seeking additional peer reviewed monitoring data
on AFO emissions, along with information on how animals and waste are
managed at specific sites. The deadline for submitting these data to
the agency was March 7, 2011.
The analysis of the data will be conducted by the EPA, with the
assistance of their contractor, ERG, in a stepwise manner beginning
with the broiler industry, followed by the swine and egg layers, and
finishing with the dairy. As the analyses for each industry are
developed, the drafts will be released on a rolling basis.
Methodologies for the other species are scheduled to be completed and
finalized by June 2012.
All stakeholders, including interested members of the scientific
community, will be provided with an opportunity to review and comment
on the draft methodologies. The EPA will announce the availability of
the draft methodologies for review in the Federal Register. In addition
to the Federal Register notice, the EPA will inform representatives of
the major AFO trade organizations and other stakeholders that the draft
methodologies are available for review and comment. Additionally, the
EPA plans to hold informational webinars, informal meetings, and
outreach sessions with all interested stakeholders to discuss the data,
processes, and information gathered from the study. Other information
submitted to the agency will also be included for review.
The EPA has made the National Air Emissions Monitoring Study
reports and associated data available to all stakeholders at
www.epa.gov/airquality/agmonitoring/.
The agency will be using the data and information collected from
the study, as well as other submitted data, to develop better tools for
estimating AFO emissions.
Question 4. EPA recently released its latest draft report on
biofuels and the environment. There seem to be inconsistencies in this
report, as compared to outcomes from the RFS rulemaking. To what extent
did the drafters of this report collaborate with USDA and other Federal
agencies, and with other departments within EPA?
The draft report focuses on the potential negative environmental
impacts of biofuels, but makes only the briefest comparison to the
impacts from continued reliance on petroleum-derived baseline fuels.
Will the final report attempt to correct this omission and go into
further detail on both the potentially positive effects of biofuels on
the environment, as well as the comparison to the environmental impacts
of increasing dependence on marginal sources of foreign oil?
Answer. The EPA does not believe there are inconsistencies with
this report to Congress and the Renewable Fuel Standard (RFS)
rulemaking. The basis for the Report to Congress was the RFS2
Regulatory Impact Analysis. This first Report to Congress reviews
impacts and mitigation tools across the entire biofuel supply chain
from feedstock production and logistics to biofuel production,
distribution, and use with an emphasis on six different feedstocks and
two biofuels. The two feedstocks most predominantly used currently are
corn starch to produce ethanol and soybeans to produce biodiesel. Four
other feedstocks (corn stover, perennial grasses, woody biomass, and
algae) have been reviewed for purposes of comparative evaluation. These
represent the range of feedstocks currently under development. The two
biofuels considered are ethanol (both conventional and cellulosic) and
biomass-based diesel, because they are the most commercially viable in
2010 and are projected to be the most commercially available by 2022.
In preparing the draft report, the EPA assembled a large team of
scientists from across the agency's research laboratories and program
offices, including close cooperation with the Office of Air and
Radiation. In addition, the EPA received input from U.S. Department of
Agriculture (USDA) and Department of Energy (DOE) staff scientists and
held a series of briefings with each of these agencies to apprise their
leadership of the approach and scope of the report. Before a draft was
released for public comment, it was reviewed by each of these agencies
and the Office of Management and Budget (OMB).
Regarding the consideration of environmental impacts of biofuels,
section 204 of the Energy Independence and Security Act (EISA) calls
for the EPA to report to Congress on the environmental and resource
conservation impacts of increased biofuel production and use, including
air and water quality, soil quality and conservation, water
availability, ecosystem health and biodiversity, invasive species, and
international impacts. This report is the first of the triennial
reports to Congress required under EISA.
The EPA has done an extensive review and analysis of the published
peer reviewed scientific literature relevant to the environmental and
resource conservation impacts of increased biofuel production and use.
The published literature on comparing the environmental impact of
biofuels with petroleum based fuels is quite limited and would have
required the authors to draw conclusions not supported by the
literature to address this important issue. It is anticipated that the
next report to Congress, due in 2013, will likely include analyses that
compare biofuel production with production of petroleum based fuels.
Question 5. There is much criticism about the EPA's Florida
proposal and this involves disputes about the underlying data,
potential costs of complying with numeric standards when they are
incorporated into discharge permit limitations, and disputes over the
administrative flexibility. Also, some fear EPA's action in Florida
will be a precedent for actions elsewhere. Are you aware of the EPA
Region 5 letter to Illinois EPA on numeric nutrient standards? Do you
intend to take the same actions in the states served by Region 5 that
you have taken in Florida?
Answer. Nitrogen and phosphorus pollution is a widespread, serious,
and growing problem. This pollution threatens our waters used for
drinking, fishing, swimming and other recreational purposes. It can
hurt the tourism industry, reduce home and property values, and impact
public health. To help states address this pollution, on March 16,
2011, the EPA sent a memo to its regional offices that builds on our
commitment to strengthen partnerships with states and promote
collaboration with stakeholders on this issue. The agency will use this
memorandum as the basis for discussions with interested and willing
states about how to move forward on tackling this issue, recognizing
that there is no one-size-fits-all solution. The agency strongly
believes states should address phosphorus and nitrogen pollution
through standards they develop and supports these critical state
efforts. At this time, the EPA is not working on any Federal standards
for phosphorus and nitrogen for any states other than ongoing efforts
in Florida, but we are ready to provide support and technical assistant
as states work to tackle this serious water pollution problem.
Question 6. We have been made aware of a memo dated March 16th
which echoes the January 21st letter sent by Region 5 to Illinois EPA.
The memo encourages Regional Administrators to work with states on
reducing nitrogen and phosphorus loadings. Can you elaborate on what is
meant by the sentence ``EPA will support states that follow the
framework but, at the same time, will retain all its authorities under
the Clean Water Act.''?
Answer. The EPA has oversight responsibility for many state
activities under the Clean Water Act (CWA) including, for example,
state adoption of water quality standards and state implementation of
the National Pollutant Discharge Elimination System (NPDES) permit
program where that program is delegated to a state. As the memorandum
notes, the EPA encourages states to follow the recommended elements in
the EPA's framework for state nutrient reductions and develop effective
programs for reducing nitrogen and phosphorus loads in the near-term
while they continue to develop state numeric water quality standards
for nitrogen and phosphorus. As the memorandum notes, it is intended to
stimulate a conversation. States retain broad discretion to design
programs that meet their specific needs in addressing nutrient
pollution, and these programs do not have to adopt the recommendations
in the memorandum. We look forward to working with states to assure
effective protection of public health and water quality, consistent
with the best-available science and the requirements of the CWA. We
also recognize under the Clean Water Act that the EPA is accountable
for effective implementation of the law.
Question 7. Have your staffing numbers been going up or down over the last 5 years? And how do the FTE levels compare in your program staff versus
the enforcement and compliance staff over that same period?
Answer. See following table:
Programmatic NPMs and OECA FTE Utilization Trends
FY 2006-FY 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
Actual FTEs
NPM -------------------------------------------------------------------------------- 2006-2010 2006-2010 %
2006 2007 2008 2009 2010 Delta Change
--------------------------------------------------------------------------------------------------------------------------------------------------------
Office of Air & Radiation 1,830.2 1,807.6 1,807.5 1,843.3 1,852.9 22.2 1.2%
Office of Water 2,131.9 2,097.6 2,088.9 2,124.7 2,207.0 75.1 3.5%
Office of Chemical Safety and Pollution 1,445.8 1,394.1 1,369.1 1,381.2 1,376.6 8(69.2)0 ^4.8%
Prevention *
Office of Solid Waste & Emergency 2,719.2 2,664.7 2,678.7 2,684.9 2,738.5 19.3 0.7%
Response
Office of Research And Development 1,936.9 1,924.8 1,899.1 1,916.7 1,903.1 8(33.8)0 ^1.7%
Office of International Affairs ** 91.7 81.2 75.3 78.4 124.6 32.9 35.9%
---------------------------------------------------------------------------------------------------------------
Programmatic NPM Total 10,155.7 9,970.0 9,918.6 10,029.2 10,202.7 47 0.5%
---------------------------------------------------------------------------------------------------------------
Year-to-Year Delta 8(186.2)0 8(51.4)0 110.6 173.5
Year-to-Year % Change ^1.83% ^0.52% 1.12% 1.73%
---------------------------------------------------------------------------------------------------------------
AA Enforcement 3,316.2 3,293.7 3,264.9 3,260.0 3,284.5 8(31.7)0 ^1.0%
---------------------------------------------------------------------------------------------------------------
Year-to-Year Delta 8(22.5)0 8(28.8)0 8(4.9)0 24.5
Year-to-Year % Change ^0.68% ^0.87% ^0.15% 0.75%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data excludes enabling and support offices including: OARM, OCFO, OEI, OA, OIG, OGC. Utilization in support offices declined by 0.24%.
* The utilization of FIFRA fees has declined over the years, but is largely offset by an increase in PRIA fees FTE. Reduction is in line with
restructured fees over this period.
** Increases in the Office of International Affairs in FY 2010 are due to the transfer of the Office of Tribal Affairs from the Office of Water to the
Office of International Affairs.
Question 8. There have been guidance documents seeking
clarification of both the SWANCC and Rapanos court decisions, but the
uncertainties about the Federal jurisdiction over wetlands and other
waters remains in limbo and highly controversial. A new guidance
document was recently released to Inside EPA. What are the
similarities/differences of this guidance related to the ones
previously released? What stage in the process is the document?
Answer. The EPA and the U.S. Army Corps of Engineers (Corps) have
drafted guidance that clarifies those waters over which the agencies
will assert jurisdiction consistent with the Clean Water Act (CWA),
implementing regulations, and Supreme Court interpretations. The draft
guidance cannot and does not alter existing requirements of the law; it
merely explains how the agencies think existing law should be applied
in general, and emphasizes that it may not be applicable in particular
cases. The scope of waters that would be protected under the
interpretations in the draft guidance would remain significantly
narrower than under the agencies' interpretations prior to the Supreme
Court's decisions in SWANCC and Rapanos. All exemptions for agriculture
in the CWA and regulations would be completely unchanged by the draft
guidance. Also, the draft guidance should have no effect on USDA and
NRCS agreements, including those undertaken under the auspices of the
Food Security Act. The EPA and the Corps released the draft guidance
for public notice and comment on May 2, 2011 with a 60 day comment
period; this comment period was later extended until July 31, 2011. The
agencies are now reviewing the comments received and will make
decisions regarding any final guidance after carefully evaluating
comments provided by the public. The agencies also expect to proceed
with notice and comment rulemaking to further clarify the regulatory
definition of the term ``waters of the United States.''
Question 9. Can you explain how and/or what other Clean Air Act
(CAA) authorities are triggered because of the emission standards for
light duty trucks? For example, how did this trigger permitting
provisions under Title V and the New Source Review?
Answer. The EPA promulgated the emissions standards for light duty
vehicles under Clean Air Act (CAA) section 202(a). ``Light-Duty Vehicle
Greenhouse Gas Emission Standards and Corporate Average Fuel Economy
Standards; Final Rule,'' 75 Fed. Reg. 25324 (May 7, 2010) (Vehicle
Rule). The standards applied to cars and light trucks for model years
2012-2016, and were applicable to greenhouse gases (GHG).
The promulgation of the Vehicle Rule triggered the application of
the New Source Review Prevention of Significant Deterioration (PSD)
permitting program and Title V permitting program. The PSD program is
found in Title I, Part C of the CAA, and those provisions apply to any
``major emitting facility,'' defined as a stationary source that emits
or has the potential to emit 100 or 250 tons per year (depending on the
type of source) of ``any air pollutant.'' CAA section 169(1) (emphasis
added). Such a facility may not initiate construction or major
modification of its facility in such an area without first obtaining a
PSD permit. See CAA sections 165(a), 169(1), 169(2)(C). For the last
thirty years, the EPA has interpreted these provisions to require that
PSD permits address ``any air pollutant'' that is ``subject to
regulation under the CAA'' (except for a ``criteria'' pollutant for
which an area has been designated non-attainment under an applicable
National Ambient Air Quality Standard).
The applicability provisions for the Title V permit program are
found in CAA sections 502(a), 501(2)(B), and 302(j). These provisions
provide that it is unlawful for any person to operate a ``major
source'' without a title V permit and define a ``major source'' to
include ``any major stationary facility or source of air pollutants
which directly emits, or has the potential to emit, one hundred tons
per year or more of any air pollutant.'' Taken together and in
accordance with long standing EPA interpretation, these provisions
provide that stationary sources are subject to Title V if they emit air
pollutants that are subject to EPA regulation.
Thus, both PSD and Title V permitting requirements are triggered
when pollutants become subject to EPA regulation. The Vehicle Rule made
GHGs subject to EPA regulation for the first time, thus triggering the
application of both PSD and Title V to GHG emissions from stationary
sources. In a separate action, ``Reconsideration of Interpretation of
Regulations that Determine Pollutants Covered by Clean Air Act
Permitting Programs,'' 75 Fed. Reg. 17004 (April 2, 2010), the EPA
determined that GHGs would become ``subject to regulation under the
Act,'' within the meaning of the CAA and the agency's longstanding PSD
regulations and Title V interpretation, as of January 2, 2011, when the
first new motor vehicles subject to the Vehicle Rule would enter the
market. Likewise, the EPA explained that on the same date greenhouse
gas emitting sources would become subject to the Title V permitting
program.
Question 10. Following up on the previous question, I understand
that in May 2010, EPA issued a rule on thresholds for GHG emissions
that define when Title V and New Source Review permits would be
required. This rule, the tailoring rule, establishes a threshold of
100,000 tons per year to those required to get a permit. Is there an
agriculture exemption in this rule? Why not? If the goal is not to get
small farms, why not include a straight exemption? You indicated in
your response to Congressman Welch during questioning that
``agriculture is exempted from greenhouse gas regulation.'' Can you
explain what you meant by that?
Answer. The purpose of the tailoring rule is to address the
overwhelming burdens on permitting authorities that would otherwise
occur if the existing statutory thresholds of 100 and 250 tons per year
were applied to greenhouse gasses (GHGs) on January 2, 2011. Hence the
final tailoring rule does not specifically exclude agricultural
operations, or any industrial sector, from the New Source Review (NSR)
or Title V permitting. Rather, the rule focuses on across the board
thresholds and distinctions. The rule accomplishes this by establishing
100,000 tons per year (tpy) of carbon dioxide equivalent
(CO2e) as a threshold for new facilities and 75,000 tpy
CO2e increases for modifications at existing facilities that
already emit 100,000 tpy CO2e (in addition to a threshold
75,000 CO2e for new and existing sources that are subject to
NSR permitting for other pollutants). Given the thresholds that are in
place for Steps 1 and 2 of the tailoring rule, farms, as well as other
small businesses (e.g., restaurants, dry cleaners, etc.) are not
covered at this time.
Question 11. With regards to the tailoring rule, exactly what
happens to whom after July 1, 2011?
Answer. For Step 2 of the tailoring rule, which began on July 1,
2011, Prevention of Significant Deterioration (PSD) permitting
requirements cover, for the first time, new construction projects that
emit large amounts of greenhouse gas (GHG) emissions (i.e., emissions
of at least 100,000 tons per year (tpy)) even if they do not exceed the
permitting thresholds for any other pollutant. Modifications at
existing facilities that increase GHG emissions by at least 75,000 tpy
(equivalent to CO2 emissions from burning 370 railcars worth
of coal) will be subject to PSD permitting requirements, even if they
do not significantly increase emissions of any other pollutant. Despite
this change for Step 2, permitting requirements would still only apply
to large sources of emissions.
Question 12. EPA has been sued by a number of parties who argue
that the Tailoring Rule is illegal. What is the status of these
lawsuits? What is your best estimate as to when we will have a final
outcome to these lawsuits? If the Tailoring Rule is struck down in
court, how will you change your approach to regulating greenhouse gas
emissions from stationary sources?
Answer. The lawsuits have been brought in the United States Court
of Appeals for the District of Columbia Circuit, and have been
consolidated. The parties are in the process of filing their briefs on
the merits. According to the briefing schedule set by the Court, merits
briefing will be completed on December 14, 2011. Although the Court has
not set a date for the oral argument, we expect that the Court will set
the date for early in 2012. If it does so, then the EPA would expect,
consistent with the Court's past practice, a decision in the summer or
fall of 2012. For the reasons that the EPA explained at length in the
Tailoring Rule preamble and in our successful defense of the rule
against the motions for stay, we believe we have a solid legal basis
for the rule.
Question 13. Since the publication of the greenhouse gas
``Tailoring Rule'' in June 2010, has EPA been petitioned to lower the
threshold level of air pollutants that requires a Title V permit? If
so, how is EPA responding to any such petition?
Answer. The EPA has not received any petitions to lower the
threshold level of air pollutants that requires a Title V permit.
Question 14. Recent court decisions have concluded that EPA's
assertion that it has authority under FIFRA to bring a misbranding or
other enforcement action based upon the failure of a chemistry or
compound to satisfy certain risk mitigation decisions is arbitrary,
capricious, an abuse of discretion, and contrary to law. Given these
court decisions, please provide the Committee with timeline of the
steps EPA intends to undertake to complete the administrative
procedures required by FIFRA Section 6 for chemistries or compounds
that have failed to satisfy the risk mitigation decision process.
Answer. Repeated question. Please see response to Question 2
submitted by Mr. Peterson.
Question 15. EPA staff has indicated that it is considering
revising its approach to making a ``public interest'' finding for
USDA's IR-4 Project applications under the Pesticide Registration
Improvement Reauthorization Act (PRIA2). IR-4 sets it research
priorities in an open public setting with significant input from the
affected agricultural sector and uses government funds to develop data
accordingly. How would the new approach for a ``public interest''
finding affect IR-4 applications?
Please describe any financial impacts that may result from a change
under the new approach for a ``public interest'' finding as it relates
to IR-4 applications? Would such a change potentially increase the
costs for IR-4 applications and thereby serve to reduce IR-4's
applications for new pesticide uses on specialty crops/minor uses? Has
EPA examined how this action might impacts on certain crops, the
significant new costs to IR-4 in and the unintended consequences to
some Federal Government priorities associated with such a change? Has
EPA discussed this issue with USDA and, if so, does USDA support the
approach being considered? In view of the vital and important role that
IR-4 serves, does the Agency believe that it needs additional
clarification from Congress regarding why IR-4 applications are in the
public interest and therefore should continue to be exempt from PRIA
fees?
Answer. Earlier this year, the EPA developed and made available for
discussion a draft proposal to explain how the Agency would make the
``public interest'' finding under the Pesticide Registration
Improvement Renewal Act (PRIA 2) [FIFRA Section 33(b)(7)(E)]. This
provision states that ``the Administrator shall exempt an application
from the registration service fee if the Administrator determines
that--(i) the application is solely associated with a tolerance
petition submitted in connection with the Inter-Regional Project Number
4 (IR-4) . . . ; and, (ii) the exemption is in the public interest.''
The Agency's draft proposal reflects the experience that the EPA has
gained in making case by case decisions over the last few years, and
captures the criteria the EPA has developed through this experience.
The EPA does not expect the articulation of the criteria to change
significantly how it would process IR-4 submissions. Because the draft
document is based on past experience, if it were adopted, existing
policies and practices would continue and would not change. Currently,
IR-4 applications remain the same. The draft document would not lead to
additional application requirements, and, therefore, the costs for IR-4
applications would not increase and there would be no financial impacts
to IR-4.
More generally, the types of applications that the EPA has found to
be in the public interest in the past would continue to be in the
public interest. Growers should see no difference and will continue to
receive the same benefits from the IR-4 program. A common understanding
of the approach will benefit and increase the efficiency of the
collaboration between IR-4, the U.S. Department of Agriculture, the
EPA, and the agricultural community.
Question 16. Can you please provide the Committee with copies of
all documents that meet all the following criteria?
(1) A settlement agreement entered into by the EPA;
(2) In response to any civil action, administrative adjudication or
petition for review brought against the EPA or the
Administrator of EPA;
(3) During the period of January 1, 2006 through March 10, 2011.
Answer. The EPA will need more time to respond to this request. The
EPA plans to treat this request, together with Question 17 below, as it
would a letter to the agency and will respond in writing to the request
and Question 17 in a separate communication.
[Editor's note: The EPA delivered to the Committee a CD containing
copies of the requested information. The documents listed are retained
in Committee files:]
Agreed Order: September 28, 2010 Northwest Environmental AdvocatesConsent Decree: February 1, 2006 Sierra Club (Proposed CD) February 15, 2006 Environmental Defense
February 24, 2006 Sierra Club and American Bottom
Conservancy
August 22, 2006 Our Children's Earth Foundation and
Sierra Club
October 16, 2006 Kentuckians For The Commonwealth, et
al.
December 8, 2006 Sierra Club
February 13, 2007 Sierra Club and Coosa River Basin
Initiative
May 10, 2007 Sierra Club
May 18, 2007 Rocky Mountain Clean Air Action, et
al.
May 31, 2007 Sierra Club (Notice of Withdrawl)
June 14, 2007 American Lung Association of
Metropolitan Chicago, et al.
November 30, 2007 National Wildlife Federation and the
Lone Tree Council
September 17, 2007 Citizens Against Ruining the
Environment
September 17, 2007 Respiratory Health Association of
Metropolitan Chicago, et al.
September 17, 2007 People of the State of Illinois, ex
rel.
May 29, 2008 Northwest Environmental Advocates
September 4, 2008 Natural Resources Defense Council,
Inc., et al.
December 17, 2009 Florida Clean Water Network and Linda
Young
December 30, 2009 Florida Wildlife Federation, Inc., et
al.
June 8, 2010 Northwest Environmental Defense
Center, et al.
November 4, 2010 Defenders of Wildlife and Sierra ClubDismissal: March 22, 2007 Pasadena Refining Systems, Inc.
April 18, 2008 Ingersoll-Rand Company
May 11, 2009 North Coast Rivers Alliance, et al.Joint Motion: October 17, 2006 Center for Biological DiversityPartial Settlement Agreement: August 20, 2007 Ohio Valley Environmental Coalition
Inc and West Virginia Highlands
Conservancy Inc.Settlement Agreement: January 27, 2006 Sierra Club
January 31, 2006 United Farm Workers of America, et
al.
March 1, 2006 St. Johns Riverkeeper, et al.
March 28, 2006 Natural Resources Defense Council,
Inc.
April 19, 2006 Utility Air Regulatory Group
June 20, 2006 Oxy Vinyls, LP
August 2, 2006 Iowa Environmental Council, et al.
September 26, 2006 Natural Resources Defense Council,
Inc., et al.
January 5, 2007 American Foundry Society
February 6, 2007 Miami-Dade County, et al.
Exhibit A--Proposed Revision to
Florida Administrative Code Section
Exhibit B--Program Guidance Memo
Exhibit C--Implementation of the
New Federal Regulations for Class I
Injection Wells in Florida
February 13, 2007 Center for Biological Diversity
March 17, 2007 Our Children's Earth Foundation
April 13, 2007 Sierra Club, et al.
May 10, 2007 New Jersey Department of
Environmental Protection
May 19, 2007 Natural Resources Defense Council,
Inc., et al.
July 9, 2007 American Iron and Steel Institute, et
al.
September 8, 2007 Rocky Mountain Clean Air Action
(Notice of Lodging SA)
September 8, 2007 Rocky Mountain Clean Air Action
January 22, 2008 Friends of the Earth
January 25, 2008 Public Employees for Environmental
Responsibility, et al.
August 8, 2008 Natural Resources Defense Council,
Inc., et al.
August 21, 2008 Union Oil Company of California, et
al.
December 29, 2008 Sierra Club, et al.
April 1, 2009 Idaho Conservation League
August 21, 2009 Sierra Club, et al.
March 10, 2010 Center for Biological Diversity
April 28, 2010 Conservation Law Foundation,
Amendment
May 10, 2010 Chesapeake Bay Foundation
May 25, 2010 Natural Resources Defense Council,
Inc., et al.
June 4, 2010 Northwest Environmental Defense
Center, et al.
July 2, 2010 Environmental Geo-Technologies, LLC,
et al.
Exhibit A--Stipulated Motion for
Voluntary Dismissal to be filed in
the Sixth Circuit Action, Case No.
09-4090
Exhibit B--Joint Motion fro Stay of
Proceedings to be filed in the
Federal District Court Action
July 12, 2010 Wild Fish Conservancy
August 25, 2010 Sierra Club
November 22, 2010 Riverkeeper, Inc., et al.
November 3, 2010 Natural Resources Defense Council,
Inc., et al. Second Amended SA
December 20, 2010 Alfred J. Davis and Cindy Davis
February 16, 2011 Sierra Club, et al. Amendment
March 3, 2011 Idaho Conservation LeagueSettlement Agreement and Order: February 19, 2008 Natural Resources Defense Council,
Inc.
May 17, 2010 Center for Biological DiversitySettlement Agreement and Release: August 15, 2007 Friends of the Earth
December 3, 2010 Anacostia Riverkeeper, et al.Stipulation and Order: June 1, 2006 Washington Toxics Coalition, et al.
October 20, 2006 Center for Biological Diversity
September 11, 2007 Natural Resources Defense Council,
Inc.
May 11, 2009 North Coast Rivers Alliance, et al.
January 12, 2010 Center for Biological Diversity
December 22, 2010 Natural Resources Defense Council,
Inc. and pesticide Action Network
North America
Question 17. At the hearing, in response to a question about
whether EPA's settlement agreements are made public, Administrator
Jackson stated, ``. . . most of our settlements are required by law to
go through public comment.''
Since 2006, which proposed settlement agreements, other than those
related to cases in which EPA took enforcement action against an
individual or entity, were published in the Federal Register for public
comment?
If some, but not all, settlement agreements are published for
public comment, explain how EPA and the Department of Justice determine
which to open for public comment. Have the criteria for these
determinations changed since January 1, 2006, and, if so, how? Please
distinguish between civil actions or petitions for review brought
against the agency from civil or criminal enforcement actions taken by
the agency against an individual or entity.
Please explain in detail, how, since January 1, 2006, EPA has
amended settlement agreements, other than those related to cases in
which EPA took enforcement action against an individual or entity,
after such agreements have been open for public comment.
Answer. This question is related to the document request in
Question 16 and the EPA will need further time to respond. The EPA will
respond to the document request under Question 16 and to this question
in a separate communication, as explained above.
Settlement Agreements and Consent Decrees Published in Federal Register for Comment Prior to Finalization 1/1/06 to 3/10/11
--------------------------------------------------------------------------------------------------------------------------------------------------------
SA/CD Entry Adverse Modified as a result of
Date Plaintiff/Petitioner Defendant Case No. Court comment? adverse comment
--------------------------------------------------------------------------------------------------------------------------------------------------------
02/22/2011 Sierra Club EPA 1:10-cv-859 D. D.C.
02/14/2011 WildEarth Guardians EPA 6:10-cv-877 D. NM
02/08/2011 Natural Resources Defense EPA 2:10-cv-6029 N.D. CA
Council, et al.
01/31/2011 WildEarth Guardians EPA 1:10-cv-01218-REB D. CO
01/14/2011 Sierra Club, et al. EPA 1:10-cv-889 D. D.C.
01/12/2011 Association of Irritated EPA 3:10-cv-3051 N.D. CA
Residents
01/11/2011 Sierra Club, et al. EPA 3:10-cv-1954 N.D. CA
01/10/2011 WildEarth Guardians EPA 1:10-cv-1672 D. CO
12/22/2010 Natural Resources Defense EPA 1:10-cv-05590-CM S.D. N.Y. X
Council
12/21/2010 American Petroleum Institute, EPA 08-1277 D.C. Circuit X
et al.
12/21/2010 State of New York EPA 06-1322 D.C. Circuit X
12/20/2010 Center for Biological EPA 3:10-cv-1846 N.D. CA
Diversity
12/13/2010 Comite Civico Del Valle, Inc. EPA 4:10-cv-2859 N.D. CA
11/23/2010 Louisiana Environmental Action EPA 1:09-cv-01333 D. D.C.
Network
09/08/2010 Sandra L. Bahr, et al. EPA 2:09-cv-2511 D. AZ X
08/31/2010 Comite Civico Del Valle, Inc. EPA 10-00946 N.D. CA
07/15/2010 American Bottom Conservancy EPA 3:10-cv-292 S.D. IL
07/14/2010 Sierra Club, et al. EPA 1:10-cv-133 D. D.C.
07/07/2010 American Chemistry Council EPA 09-1325 D.C. Circuit X
07/06/2010 Sierra Club EPA 4:09-cv-152 N.D.CA X Modified two of the
deadlines for proposed and
final actions with regard
to technology and residual
risk review for source
categories.
06/21/2010 Navistar, Inc. EPA 09-1113 D.C. Circuit
06/21/2010 Navistar, Inc EPA 09-1317 D.C. Circuit
06/08/2010 Sierra Club EPA 3:09-cv-751 W.D. WI
06/04/2010 Sierra Club EPA 3:10-cv-127 W.D. WI
05/17/2010 Center for Biological EPA 3:07-cv-02794-JCS N.D. CA X Terms of the injunction
Diversity were amended to exempt
public health uses and
reduce use limitations on
certain termiticide and
rodenticide applications.
04/19/2010 Louisiana Environmental Action EPA 1:09-cv-1943 D. D.C.
Network
04/15/2010 American Nurses Association, Stephen L. 1:08-cv-2198 D. D.C. X
et al. Johnson
04/14/2010 Environmental Integrity EPA 1:10-cv-165 D. D.C.
Project, et al.
03/22/2010 WildEarth Guardians EPA 1:09-cv-01964 D. CO X
03/09/2010 WildEarth Guardians EPA 09-cv-02109-MSK-KLM D. CO
03/01/2010 State of New Jersey, et al. EPA 08-4818 3rd Circuit
02/23/2010 WildEarth Guardians EPA 4:09-cv-2453 N.D. CA
02/05/2010 Environmental Integrity EPA 1:09-cv-00218 D. D.C.
Project, et al.
02/04/2010 WildEarth Guardians, et al. EPA 1:09-cv-00089 D. D.C. X
02/02/2010 WildEarth Guardians EPA 1:09-cv-2148 D. CO
01/29/2010 Comite Civico Del Valle, Inc. EPA 4:09-cv-04095 N.D. CA
12/30/2009 Association of Irritated EPA 4:09-cv-1890 N.D. CA
Residents
11/24/2009 Environmental Integrity EPA 1:09-cv-1025 D. D.C.
Project, et al.
11/14/2009 Sierra Club EPA 1:09-cv-1 028 D. D.C.
11/03/2009 Sierra Club, et al. EPA 1:09-cv-00312 D. D.C.
10/30/2009 Mossville Environmental Action EPA 1:08-cv-1803 D. D.C. X
Now, et al.
10/16/2009 Sierra Club EPA 2:09-CV-00085-WOB E.D. KY
09/22/2009 Sierra Club EPA 3:09-cv-00122 W.D. WI
09/08/2009 Association of Irritated EPA 4:08-cv-5650 N.D. CA
Residents
09/08/2009 WildEarth Guardians EPA 1:08-cv-2253 D. D.C.
08/21/2009 Colorado Citizens Against EPA 1:08-cv-1787 D. CO
Toxic Waste, Inc, et al.
06/18/2009 Alliance of Automobile EPA 08-1109 D.C. Circuit
Manufacturers
06/02/2009 Sierra Club EPA 08-c-664 W.D. WI
06/01/2009 Sierra Club, et al. EPA 1:08-cv-1999 D. D.C.
05/22/2009 American Petroleum Institute EPA 06-1321 D.C. Circuit
05/21/2009 BCCA Appeal Group, et al. EPA 3:08-cv-1491 N.D. TX
03/19/2009 Environmental Integrity EPA 1:09-cv-00087 D. D.C.
Project
03/16/2009 Environmental Integrity EPA 1:09-cv-00088 D. D.C.
Project, et al.
03/03/2009 Rocky Mountain Clean Air EPA 1:08-cv-01422-RWR D. D.C.
Action, et al.
01/06/2009 Portland Cement Association EPA 07-1046 D.C. Circuit
09/12/2008 Association of Irritated EPA 08-0227 N.D. CA
Residents, et al.
06/09/2008 Desert Rock Energy Company, EPA 4:08-cv-00872 S.D. TX X
LLC, et al.
06/04/2008 Sierra Club, et al. EPA 06-CV-4000 N.D. IL
05/14/2008 National Environmental EPA 06-1428 D.C. Circuit
Development Association's
Clean Air Project
03/25/2008 Coke Oven Environmental Task EPA 06-1131 D.C. Circuit
Force
01/17/2008 Battery Council International EPA 07-1364 D.C. Circuit
11/19/2007 Center for Biological EPA 05-1814 D. D.C.
Diversity, et al.
11/06/2007 Sierra Club EPA 1:07-cv-01040 D. D.C.
10/24/2007 Sierra Club EPA 1:07-CV-00414 D. D.C.
09/17/2007 Citizens Against Ruining the EPA 06-CV-6915 N.D. IL
Environment
09/13/2007 Rocky Mountain Clean Air EPA 07-1012 D.C. Circuit X
Action
09/07/2007 American Iron and Steel EPA 00-1434 D.C. Circuit
Institute, et al.
08/23/2007 Sierra Club EPA 07-C-0154-S W.D. WI
08/20/2007 Ingersoll-Rand Company EPA 98-1597 D.C. Circuit
07/19/2007 People of the State of EPA 1:06-CV-06909 N.D. IL
Illinois ex rel. Madigan
07/09/2007 Steel Manufacturers EPA 05-1135 D.C. Circuit
Association, et al.
06/14/2007 American Lung Association of EPA 06-CV-6933 N.D. IL
Metropolitan Chicago, et al.
05/22/2007 Environmental Defense, Inc., EPA 06-1164 D.C. Circuit
et al.
05/17/2007 Rocky Mountain Clean Air EPA 1:06-CV-01992 D. D.C.
Action, et al.
05/14/2007 New Jersey Department of EPA EPA 07-3746 3rd Circuit
05/14/2007 State of New Jersey EPA 07-612 D. NJ
05/04/2007 Sierra Club EPA 06-5288 N.D. CA
03/22/2007 Pasadena Refining Systems, EPA 04-60982 5th Circuit
Inc.
03/22/2007 Pasadena Refining Systems, EPA 05-60551 5th Circuit
Inc.
03/20/2007 Our Children's Earth EPA 05-73130 9th Circuit
Foundation
02/14/2007 Center for Biological EPA 1:06-CV-01350 D.C. Circuit
Diversity, et al.
02/12/2007 Sierra Club, et al. EPA 1:06-CV-1523 N.D. GA
01/05/2007 American Founders' Society EPA 04-1191 D.C. Circuit
12/13/2006 Sierra Club EPA 06-0663 BB/LFG D. NM
10/20/2006 Center for Biological Stephen L. 02-1580-JSW N.D. Cal. X Changes made to definition
Diversity Johnson of ``upland habitat'';
flood control and rights-
of-way fire protection
uses were exempted from
coverage under the
injunction; and a few
minor wording changes were
made.
10/16/2006 Kentuckians For The EPA 1:06-CV-00184 D. D.C.
Commonwealth , et al.
10/02/2006 Natural Resources Defense EPA 06-1059 D.C. Circuit
Council
08/21/2006 Our Children's Earth EPA 05-05184 WHA N.D. CA
Foundation, et al.
04/19/2006 Utility Air Regulatory Group EPA 06-1056 D.C. Circuit
03/28/2006 Natural Resources Defense EPA 03-CV-02444 RDB D. MD
Council
02/01/2006 Sierra Club EPA 05-CV-02177 D. D.C.
01/31/2006 United Farm Workers EPA 2:04-cv-00099-RSM W.D. WA
01/27/2006 Sierra Club EPA 05-1045 D.C. Circuit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Question 18. The following questions relate to the settlement
agreement that EPA signed with the Waterkeeper Alliance, Natural
Resources Defense Council, Inc., and Sierra Club on May 25, 2010:
When was the proposed settlement agreement published for public
comment?
Answer. The settlement agreement was not published in proposed form
for public comment. The Clean Water Act, unlike the Clean Air Act, does
not require settlement agreements entered into under the statute to be
published for public comment before being finalized. Under the
settlement agreement, the EPA committed to propose collecting certain
identifying information from concentrated animal feeding operations
(CAFOs), or if the agency does not propose collecting this information,
to explain why it is not proposing to do so. The agency will publish
that proposal for public notice and comment and will seek stakeholder
input on it before taking any final action. The EPA did not commit in
the settlement agreement to take any specific final action. The
specific provisions of the settlement agreement addressed a proposed
rule only.
Question 18a. Is the final settlement agreement posted on either
EPA's or the Department of Justice's website?
Answer. The final settlement agreement is publicly available. With
some exceptions, neither the Environment and Natural Resources Division
of the Department of Justice nor the EPA generally posts final
settlement agreements in petition for review cases on its website. The
EPA will post on its website any guidance or proposals which it
undertakes to issue pursuant to such a settlement agreement.
Question 18b. EPA has stated that its determinations on whether or
not to settle with a petitioner are based on case-by-case
determinations of legal risk and the requirements of the law. Please
explain in detail why EPA determined that it was necessary to settle
with the environmental petitioners (Waterkeeper Alliance, Natural
Resources Defense Council, Inc., and Sierra Club).
Answer. The environmental petitioners filed petitions for review
raising two challenges to the EPA's final rule entitled ``Revised
National Pollutant Discharge Elimination System Permit (NPDES)
Regulation and Effluent Limitations Guidelines for Concentrated Animal
Feeding Operations (CAFOs) in Response to the Waterkeeper Decision.''
73 Fed. Reg. 70418 (Nov. 20, 2008). First, they challenged the EPA's
failure to require CAFOs that are known to discharge to apply for NPDES
permits. Second, they challenged the EPA's analysis of ``best
conventional pollutant control technology'' for fecal coliform. After
weighing the legal risks of litigating these issues, the EPA, with the
Department of Justice's concurrence, determined that settling this case
was the most effective way of resolving the controversy in furtherance
of the goals of the Clean Water Act.
Question 18c. Why were the agricultural petitioners (National Pork
Producers Council, National Chicken Council, and American Farm Bureau
Federation) not included in the settlement negotiations? Did the
Department of Justice or EPA make the decision not to include the
agricultural petitioners in the settlement negotiations?
Answer. The EPA prefers, where possible, to reach agreement with
all stakeholders to avoid further litigation. In this case, the EPA had
conversations with the agricultural petitioners in an effort to reach
settlement but was unable to reach agreement with them. The EPA and the
Department of Justice generally include only the party or parties with
which they are settling in settlement negotiations.
Question 18d. Since the settlement agreement was reached with the
environmental petitioners, has EPA conducted settlement negotiations
with the agricultural petitioners?
Answer. No. No. Prior to reaching a settlement with the
environmental petitioners, the EPA had conversations with the
agricultural petitioners in an effort to reach settlement. However, as
indicated above, the EPA and the agricultural petitioners were unable
to reach settlement.
Question 18e. In negotiating and entering into this settlement
agreement, what considerations did EPA make regarding the increased
regulatory burden that would be placed on the owners or operators of
concentrated animal feeding operations (CAFOs)?
Answer. The EPA did not commit in the settlement agreement to take
any final actions that would affect CAFOs. The EPA committed to propose
collecting certain identifying information from CAFOs, or if the agency
does not propose collecting this information, to explain why it is not
proposing to do so. The EPA's proposal will be subject to public notice
and comment before the agency takes any final action on it. Further,
the agency believes that reaching out to agricultural stakeholders to
discuss their views on such a collection would be an essential part of
its decision making process. Minimizing any burden on the regulated
community is a priority for the EPA and the agency will welcome CAFO
owners and operators' views as to how best to achieve that goal.
Question 18f. EPA will soon be publishing a proposed rule to
effectuate the policy changes that EPA agreed to implement in the
settlement agreement. If there is a public comment period for the
proposed rule, does EPA have the flexibility to make substantive
changes to the proposed rule following the comment period, or is EPA
legally bound to adhere to the settlement agreement? If EPA were to
make substantive changes to the proposed rule, what legal effect would
such changes have on the settlement agreement?
Answer. The settlement agreement does not bind the EPA to any
specific final action. It requires the EPA to propose collecting
certain identifying information from concentrated animal feeding
operations (CAFOs), or, if the agency does not propose to collect that
information, to explain why it is not proposing to do so. The EPA will
solicit public comment on the proposal. After considering comments, the
EPA has the flexibility to make substantive changes to the proposed
rule and will have the option to determine, in its final action, how
much, if any, of the information it will collect. Further, the
settlement agreement specifically states that it does not in any way
limit the EPA's discretion under the Clean Water Act or general
principles of administrative law.
Question 18g. The settlement agreement requires EPA to collect
detailed information from CAFO owners or operators. The information
will be made public unless there is a showing that the information is a
confidential trade secret, pursuant to 33 U.S.C. 1318(b). What does
EPA consider to be a confidential trade secret? For instance, would
owner/operator names, locations, numbers of animals, whether a CAFO has
a nutrient management plan, or whether a CAFO has applied for an NPDES
permit be made public?
Answer. As stated above, the settlement agreement does not require
the EPA to collect any information. It requires the EPA to propose
collecting certain information, or, if the agency does not propose to
collect that information, to explain why it is not proposing to do so.
The EPA will solicit public comment on the proposal before taking final
action. The EPA did not commit in the settlement agreement to the
content of its final action.
If the EPA decides, in a final rule, to collect information from
concentrated animal feeding operations (CAFOs), it would collect that
information pursuant to section 308 of the Clean Water Act, the Act's
information-gathering authority. Section 308 requires the EPA to make
public any information the EPA collects under the rule unless that
information is confidential business information (CBI). CBI is defined
and discussed in the EPA's regulations codified at 40 CFR part 2,
subpart B For any information collection requirement that EPA
finalized, CAFOs would be given the opportunity to identify what
information they believe qualifies as CBI. EPA would treat any such
claimed CBI in accordance with its regulations, which generally require
that the submitter of the information have the opportunity to
substantiate their claim. EPA would then determine whether the claimed
information meets the definition of CBI, and not release the
information if it did.
Question 18h. How does EPA plan to use the information that it
collects?
Answer. If the EPA were, in a final action, to determine to collect
any information from concentrated animal feeding operations (CAFOs),
the EPA would use the information to further its statutory duties to
restore and maintain the quality of this nation's waters. In support of
these responsibilities, the EPA develops and enforces regulations,
assesses the effectiveness of its programs, awards grants, researches
environmental issues, sponsors partnerships, educates the public, and
publishes information. A basic inventory of CAFOs, which is generally
what the settlement agreement addresses, could be useful for any of
these purposes.
Question 18i. On March 16, the U.S. Court of Appeals for the 5th
Circuit ruled that EPA could not mandate that a CAFO that ``proposes''
to discharge obtain a National Pollutant Discharge Elimination System
permit. How will this ruling impact the settlement agreement and the
expected proposed rule?
Answer. The Court of Appeals' decision in National Pork Producers
Council et al., v. EPA does not address EPA's authority to collect
information pursuant to section 308 of the Clean Water Act. The
decision therefore would not affect the EPA's data collection proposal.
Question 19. When EPA is negotiating a settlement, and it becomes
clear that the agency will propose a rule as a result of the
settlement, does EPA conduct an economic analysis of the impact of the
impending regulation during settlement negotiations? If not, does EPA
conduct an economic analysis of the impact during the rulemaking
process? If the economic analysis shows problems with the proposed
rule, does EPA have the authority to change the rule, or would that
negate the settlement agreement?
Answer. Where the EPA agrees under a settlement to propose a rule,
it does not conduct an economic analysis. Whether the EPA conducts
economic analysis of the impact of any given proposed rule depends on
the nature of the rule in question. The EPA does not commit in
settlement agreements to final, substantive outcomes of rulemaking and
retains adequate discretion under its settlement agreements to address
the results of any economic analysis undertaken in connection with a
proposed rule. For this particular proposal related to the settlement
agreement described above, the EPA is required to determine information
collection costs pursuant to the Paperwork Reduction Act. EPA expects
that the costs of collecting the basic inventory information addressed
in the settlement agreement would generally be low and unlikely to pose
a significant regulatory burden.
Question Submitted by Hon. Timothy V. Johnson, a Representative in
Congress from Illinois
Question. Ms. Jackson, one of the greatest challenges in rural
America right now is addressing urgent water and wastewater needs for
small rural communities. At the same time, the EPA continues to add
layers of stringent regulations on these communities, requiring
billions of dollars in new investments throughout each state. When
developing a TMDL does the EPA consider the impact the implementation
of the TMDL may have on water and sewer rates, especially across small
rural communities? What remedies do you offer if the community is
unable to finance changes to their system or build a new system?
Answer. The EPA recognizes the particular needs faced by rural
communities in maintaining their water and wastewater infrastructure,
and the EPA seeks to ensure that its programs are implemented in ways
that recognize these specific challenges. In the context of a total
maximum daily load (TMDL), most TMDLs are completed by the states, and
this is the EPA's preference. TMDLs are approved by the EPA, and to
receive approval, they must identify pollutant reductions adequate to
meet water quality standards, including a margin of safety. This
evaluation does not specifically consider costs. However, the EPA
encourages states to take into consideration implementation issues,
such as the cost of implementation, when they develop TMDLs, although
implementation plans for TMDLs are not required by Federal law. The
TMDL development process also provides opportunities for stakeholder
input on how the TMDL would be implemented. States may also have the
opportunity, should they wish to do so consistent with the Clean Water
Act, to adopt temporary variances from their water quality standards,
or they can set lower water quality goals to avoid widespread social or
economic impacts. These changes would also require EPA approval.
Additionally, the Clean Water State Revolving Fund (SRF) is one
mechanism available to communities for financing upgrades to publicly
owned treatment works. The Clean Water SRF offers below market interest
rates that can make financing treatment plant upgrades more affordable
for many communities. In addition, the FY 2010 and FY 2011
appropriations allowed the SRF programs to use a portion of their
capitalization grant to provide additional subsidy in the form of
principal forgiveness, negative interest loans, and grants. States are
encouraged to use this additional subsidy to provide financing to rural
communities that could not otherwise afford a loan.
Questions Submitted by Hon. Martha Roby, a Representative in Congress
from Alabama
Question 1. First, I like to ask you about the EPA guidance
document that would broaden the reach of the Clean Water Act. Many
stakeholders in Alabama are concerned with how EPA is going to redefine
``Waters of the U.S.'' and how this will impact agriculture and the
jurisdiction USDA and NRCS has through a MOU on wetland/stream issues?
Also, can you please explain why this determination is being done
through an internal guidance document as opposed to a formal rulemaking
that would provide for public comment? It seems that a change to the
definition of water in the U.S. will have far reaching effects and
should be an open and transparent process.
Answer. The EPA and the U.S. Army Corps of Engineers (Corps) have
drafted guidance that clarifies those waters over which the agencies
will assert jurisdiction consistent with the CWA, implementing
regulations, and Supreme Court interpretations. The draft guidance
cannot and does not alter existing requirement of the law, it merely
explains how the agencies think existing law should be applied in
general, and emphasizes that it may not be applicable in particular
cases. The scope of waters that would be protected under the
interpretations in the draft guidance would remain significantly
narrower than under the agencies' interpretations prior to the Supreme
Court's decisions in SWANCC and Rapanos. All exemptions for agriculture
in the CWA and regulations would be completely unchanged by the draft
guidance. Also, the draft guidance should have no effect on U.S.
Department of Agriculture and the Natural Resources Conservation
Service agreements, including those undertaken under the auspices of
the Food Security Act. The EPA and the Corps released the draft
guidance for public notice and comment on May 2, 2011 with a 60 day
comment period; this comment period was later extended until July 31,
2011. The agencies are now reviewing the comments received and will
make decisions regarding any final guidance after carefully evaluating
comments provided by the public. The agencies also expect to proceed
with notice and comment rulemaking to further clarify the regulatory
definition of the term ``waters of the United States.''
Question 2. In your testimony you refer to the EPA's latest actions
in your review of the National Ambient Air Quality Standards as
required every 5 years under the Clean Air Act. The Second Draft Policy
Assessment for Particulate Matter released on July 8, 2010 would
establish the most stringent and unparalleled regulation of dust in our
nation's history. If this ruling goes into effect, it appears that this
would be impossible for farmers in Alabama to attain. Whether it is
livestock kicking up dust, tractors going through a field or merely a
car driving down a gravel road, farmers are going to be in
noncompliance. And in times that Alabama faces extreme drought like a
few years ago, it will only make it more impossible. What options are
available to you regarding modifications to air quality standards
regulations for farm dust?
Answer. I committed in an October 17, 2011 letter that the EPA will
send to the Office of Management and Budget a proposal to keep the
PM10 national ambient air quality standard as it is, with no
change. This existing standard has been in effect since 1987. I am
hopeful that this announcement ends the myth that the agency has plans
to tighten regulation of farm dust.
Question 3. In response to questions about treating milk as oil
under the SPCC regulations, you have repeatedly stated that the EPA
does not intend to regulate milk. I suppose you recognize that these
questions would not keep coming up had the EPA not withdrawn the
proposed exemption issued by your predecessor in January of 2009. It is
now 26 months later and the EPA has yet to issue a final rule exempting
milk from the SPCC regulations. What are you planning to change in the
proposed exemption that has taken you over 2 years to draft?
Answer. On April 12, 2011, the EPA issued its final rule exempting
milk and milk product containers from the Oil Spill Prevention,
Control, and Countermeasure (SPCC) rule. The final rule was published
in the Federal Register on April 18, 2011 and became effective on June
17, 2011.
Question 3a. Does EPA plan to regulate other low capacity on-farm
storage? What kind of guidance and implementation time-frames will you
consider for on-farm storage?
Answer. The Oil Spill Prevention, Control, and Countermeasure
(SPCC) rule is not directed toward low capacity oil storage. It applies
to farms that store more than 1,320 U.S. gallons in total of all
aboveground containers or more than 42,000 gallons in completely buried
containers.
Regarding the implementation time frames, the SPCC program requires
the preparation and implementation of an SPCC Plan. Farms in operation
on or before August 16, 2002, must maintain or amend their existing
Plan by November 10, 2011. Any farm that started operation after August
16, 2002, but before November 10, 2011, must prepare and use a Plan on
or before November 10, 2011. On October 18, 2011, the EPA amended the
date by which farms must prepare or amend and implement their SPCC
Plans, to May 10, 2013. If the EPA receives no adverse comment by
November 2, 2011, then the rule will become effective on November 7,
2011. Assistance for farms is available through the EPA regional
offices and at: http://www.epa.gov/emergencies/content/spcc/
spcc_ag.htm.
Question 4. I am extremely concern over the proposed Boiler MACT
rule to reduce pollution from industrial boilers. In Alabama, we have
over 61 boilers with 51 of them in the wood products industry. I have
heard from constituents that if it goes into effect that it would
result in a loss of 17,000 jobs in mills plus nearly 55,000 jobs in the
surrounding communities. New Air Regulations could total about $4
billion annually, which is over 4 times the entire industries profit
for 2008. I do appreciate the response in February that your office
gave me and my fellow freshman colleagues who wrote to you in the
beginning of this Congress on this issue. In that letter you mention
that you will be accepting more comments on the rule--Could you discuss
what we should expect from the Agency in the next few months in how
they will be collecting and reviewing these additional comments and
when we expect you to take the next step on the final ruling?
Answer. Based on public comment and additional data provided during
the comment period, the EPA made significant changes to the rules. The
rules still achieve significant public health protections through
reductions in toxic air emissions, including mercury and soot, but the
cost of implementation was cut by about 50 percent from a version of
the proposals issued last year. One of the changes made in the final
rule was to combine coal and biomass fired boilers into a single
subcategory, with the effect that owners and operators of biomass
boilers will be able to comply more easily and at lower cost than was
envisioned in the proposed rule. Also, as the result of the final rule
defining nonhazardous solid waste, boilers burning clean biomass, or
secondary biomass material generated through other processes that
nonetheless is similar to clean biomass will not be reclassified as
solid waste combustors. In addition, wood residuals were removed from
the definition of non-hazardous solid waste, which provides additional
fuel flexibility for biomass boilers. Finally, owners of biomass
boilers may submit case by case requests for other types of materials
to qualify as fuels (and, if they qualify, be permitted to be combusted
by units subject to the boiler major or area source standards rather
than the incinerator standards).
Many biomass boilers are located at area sources of hazardous air
pollutants. Area sources are typically smaller industrial or commercial
operations/facilities. Significant changes were made to the area source
requirements for biomass units. Under the final rule, existing area
source biomass boilers are subject to a periodic tune-up requirement
rather than the emission limits that were proposed. New biomass boilers
are subject to emission limits for particulate matter that are
reflective of readily available, proven, cost effective technologies
that will not harm the economics of new projects at area sources.
The EPA believes further public review is required because the
final standards significantly differ from the proposals. Therefore, the
EPA has announced that it intends to reconsider certain aspects of the
final standards under the Clean Air Act process for reconsideration,
which allows the agency to seek additional public review and comment to
ensure full transparency. This process will enable us to conduct
further analysis of issues presented during and after the public
comment period for the recently adopted rule, including any further
information that the public and affected source owners choose to
provide to the EPA. As part of the reconsideration process, the EPA
will issue a stay postponing the effective date of the standards for
major source boilers and commercial and industrial solid waste
incinerators. EPA also announced that the agency would accept
additional data and information regarding potential reconsideration of
these standards until July 15, 2011. We intend to issue a proposed
reconsideration decision by the end of October 2011 and to finalize a
decision by the end of April 2012. This schedule will allow the agency
to base the final standards on the best available data and provides the
public with ample opportunity to submit additional information and
input.
Questions Submitted by Hon. Jean Schmidt, a Representative in Congress
from Ohio
Question 1. In your response to Chairman Lucas regarding biological
opinions under the Endangered Species Act, could you clarify for us
what your plans are regarding external review?
Answer. In March 2011, on behalf of the Departments of Agriculture,
Commerce, and Interior, the EPA requested that the National Academy of
Sciences (NAS) convene a committee of independent experts to review
scientific and technical issues that have arisen as a result of
collective responsibilities under the Endangered Species Act (ESA) and
the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The
recent experience of completing consultations under the ESA for FIFRA
related actions affecting Pacific salmon has illustrated a number of
scientific issues. The scientific and technical topics on which we seek
advice pertain to the approaches utilized by the EPA, the Fish and
Wildlife Service of the Department of the Interior, and the National
Marine Fisheries Service of the Department of Commerce's National
Oceanic and Atmospheric Administration in assessing the effects of
proposed FIFRA actions on endangered species and their habitats. These
topics include the identification of best available scientific data and
information; consideration of sub-lethal, indirect and cumulative
effects; the effects of chemical mixtures and inert ingredients; the
use of models to assist in analyzing the effects of pesticide use;
incorporating uncertainties into the evaluations effectively; and the
use of geospatial information and datasets that can be employed by the
departments and agencies in the course of these assessments. Two
Biological Opinions developed by the National Marine Fisheries Service
evaluating the impacts of six pesticides (carbaryl, carbofuran,
chlorpyrifos, diazinon, malathion, and methomyl) on Pacific salmon will
serve as examples to illustrate the scientific complexity of these
issues. A concerted, closely coordinated effort to address these issues
openly and actively will assist in the proper execution of the
statutory responsibilities under the ESA, FIFRA and other applicable
laws.
The Executive Branch is formulating the specific charge to the NAS
panel. Based upon preliminary discussions with the NAS, we believe that
the external review could be completed in approximately 18 months, once
the panel is convened. The first meeting of the NAS panel is scheduled
for November 3, 2011.
Question 2. Last week, the EPA filed for an extension of the court
order in the case NCC v. EPA to give additional time to complete
consultations under the Endangered Species Act. Is the EPA guaranteed
to receive the extension you requested?
Answer. On March 28, 2011, the United States Court of Appeals for
the Sixth Circuit granted the EPA's 2nd Motion to Stay the Mandate
until October 31, 2011 in the National Cotton Council of America v. EPA
case.
Question 2a. If an extension is not granted, would EPA and the
states be able to finalize a Pesticide General Permit by April 9th?
Answer. As discussed in the response above, on March 28, 2011, the
United States Court of Appeals for the Sixth Circuit granted the EPA's
2nd Motion to Stay the Mandate until October 31, 2011 in the National
Cotton Council of America v. EPA case.
Question 2b. In the absence of a Pesticide General Permit, could
pesticide applicators be subject to citizen suits under the Clean Water
Act for failure to obtain an NPDES permit?
Answer. As indicated in the responses above, pesticide applicators
are not required to obtain an NPDES permit prior to October 31, 2011.
After that date, an operator who does not have a permit and who
discharges could be subject to enforcement under the Clean Water Act,
including enforcement under the citizen suit provisions, where
applicable.
Question 3. I want to turn attention to an issue pertaining to
environmental justice and an issue that is very important to me and
southern Ohio, bed bugs. Administrator Jackson, the EPA held a National
Bed Bug summit in April of 2009 and again in February of 2011 with the
goal of reviewing the current bed bug problem and identifying actions
to address the problem. While I agree with the intent of the summit and
some of the proposals, it seems as though EPA is almost exclusively
focused on outreach and prevention. Outreach and prevention are worthy
and laudable goals, but it does nothing for people who actually have
bed bug infestations, especially those living on fixed and lower
incomes. Do you think that proper consideration was given to Section 18
exemption requests from states like Ohio for pesticide permits to
eradicate this pest?
Answer. The EPA's approach, as supported by CDC, DOD, HUD, NIH, and
USDA, is not focused solely on outreach and prevention, but rather
these efforts are part of a more comprehensive and multifaceted
strategy that includes a variety of educational, non-chemical, and
chemical approaches for bed bug management and control. Many involved
in addressing bed bug infestations are now recognizing that no chemical
is a silver bullet and that effectively managing bed bugs requires a
comprehensive, collaborative approach.
The EPA's role is to carry out the Congressional mandate in the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to ensure
that pesticides are (1) safe and (2) effective. We carry out that
responsibility through rigorous scientific screening of pesticides and
imposing limits on the use of registered pesticides to ensure that they
do not harm people or the environment when used according to the label.
The EPA's assessment of Ohio's request for an emergency exemption
allowing use of propoxur for bedbug infestation suggests the likely
exposures to propoxpur are not adequately protective of the public.
Propoxur, along with other members of its chemical class, is known to
cause nervous system effects. The agency's health review for its use on
bed bugs suggests that children entering and using rooms that have been
treated may be at risk of experiencing nervous system effects.
Inhalation and hand-to-mouth exposure routes pose the most concern for
children. A safety evaluation must support all emergency use patterns,
and the current risk assessment does not support a general approval, as
had been sought in Ohio's section 18 request.
Question 3a. Has the EPA reached a final decision on Ohio's Section
18 request? If not, what mitigation measures is EPA presently
considering? If EPA's decision to refuse the Section 18 request is
final, is the Agency considering an alternative approach that Ohio and
the other should pursue?
Answer. The EPA is open to working with Ohio and others to
determine whether propoxur can be used in some capacity for the control
of bed bugs. As you are aware, the EPA's review found the requested use
presents an unacceptable risk because children exposed to propoxur in
treated rooms may experience nervous system effects (cholinesterase
suppression). Inhalation and hand-to-mouth exposure routes pose the
most concern for children. In addition, during the propoxur product
reregistration process (2007 to 2009), all indoor residential spray
uses were deleted from product labels due to risks to children.
The EPA has communicated these results to the officials in Ohio.
The EPA has offered Ohio the possibility of allowing the use of
propoxur in locations where children would not be present, such as
senior centers or other managed facilities with the ability to protect
children from exposure. At this time, Ohio state officials have not
proposed to modify their propoxur request in that manner.
The EPA has also been in discussions with Ohio, and others, about
the possibility of conducting additional toxicity testing that could
assist the EPA in refining the risk assessment for propoxur.
Question 4. In December, several of my colleagues and I sent you a
letter expressing our concerns about EPA's draft Pesticide Registration
Notice (PR Notice) 2010-X entitled False or Misleading Pesticide
Product Brand Names. The proposal would require registrants of consumer
pesticide products to change trademarked brand names if they contain
words that EPA now considers to be misleading such as ``pro'' or
``green'' even though the agency has previously approved these names.
These products have been thoroughly evaluated through EPA's rigorous
pesticide registration process and many of these products have been on
the market for decades.
What evidence does EPA have to suggest that consumers are confused
by pesticide product brand names? Many of the potentially affected
products are decades old and familiar to consumers.
Answer. The EPA is aware of registrants' concerns about the draft
PR Notice 2010-X concerning false or misleading pesticide product brand
names. As background, for a registrant to lawfully sell and distribute
a pesticide in the United States, the product cannot be ``misbranded''
as defined in the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) [see FIFRA 12(a)(1)(E)]. FIFRA defines ``misbranded,'' in
part, as having labeling that ``bears any statement, design, or graphic
representation relative thereto or to its ingredients which is false or
misleading in any particular'' [see FIFRA 2(q)(1)(A)]. Therefore, if
a brand name or product name that appears on a product's labeling is
false or misleading, it would be a violation of FIFRA to sell or
distribute the product. In addition, the EPA could not grant a
registration to a product that would be misbranded [see FIFRA
3(c)(5)(B)].
The draft PR Notice 2010-X does not require registrants to change
pesticide product brand names; rather, it provides examples of brand
names that may be considered to be false or misleading and describes a
process for ensuring that brand names are not false or misleading by
making changes such as replacing them or including qualifiers or
disclaimers. Even though the PR Notice is still in draft, the FIFRA
requirements apply to all pesticides, and when making decisions on
registration applications or amendments, the EPA must determine whether
labeling is false or misleading.
Regarding your question about consumers, the EPA does not make
decisions about the acceptability of pesticide product brand names
solely based on complaints from consumers. The basis for evaluating a
product's brand name is initially the EPA's judgment as to whether that
name appears to be ``false or misleading in any particular'' along with
any evidence the EPA may possess indicating a name is false or
misleading, consistent with the statute. The agency reviews a pesticide
product's labeling and informs applicants or registrants if the agency
finds specific statements, claims, product brand names, logos, pictures
or other aspects of the labeling to be potentially false or misleading.
For example, a product name containing the term ``green'' could mislead
the consumer into believing that a product is totally safe for the
environment and thereby cause consumers to ignore the safety warnings
and precautions on the label.
When labeling is potentially false or misleading, the EPA may work
with the applicant or registrant to modify the labeling so that it is
not false or misleading before the labeling is approved. Occasionally,
some applicants, registrants and distributors have considered or
adopted product brand names (or placed company names or trademarks
within or in close proximity to product brand names) that run counter
to agency regulations and FIFRA concerning false or misleading claims.
It is for this reason that the EPA believes that guidance issued in the
form of a PR Notice is needed to clarify its current interpretation of
what product names may be false or misleading. Again, the PR Notice
does not require any brand name to be changed, instead it provides
guidance to registrants on what terms may be false or misleading as
well as options for modifying labeling so that it is not false or
misleading.
Finally, you may be interested to know that the EPA is considering
narrowing the scope of the notice so that it focuses solely on safety-
and composition-related terms, which would reduce the number of
potentially affected products by roughly \2/3\ (66%). For example, the
term ``pro'' and other efficacy-related terms would be removed from the
PR Notice.
Question 4a. In his response to the letter from my colleagues and
I, Assistant Administrator Owens states that ``EPA believes that only a
very small number of products will be affected by the final PR
Notice,'' and ``EPA believes that very few registrants, if any, would
actually need to change their product brand names and that no
significant adverse impacts should occur in the marketplace.'' However,
an industry estimate suggests that the proposal could impact more than
5,000 currently registered pesticide products and result in a potential
loss of approximately $2.5 billion in brand equity. What analysis did
EPA conduct to support the conclusion that only a very small number of
products will be affected? Can you explain the discrepancy between
EPA's prediction of the proposal's affect and that of the industry?
Answer. In evaluating the public comments received on the draft PR
Notice, the EPA has counted the products bearing brand names for
federally registered pesticide products that contain the 21 terms
listed in the draft notice as potentially false or misleading. The EPA
has found a total of 1,322 federally registered product brand names
(not including distributor products) containing those listed terms. As
mentioned in the previous answer, the EPA is currently contemplating
narrowing the scope of the notice so that it focuses solely on safety-
and composition-related terms, which would reduce by about \2/3\ (66%)
the number of potentially affected products. Moreover, the draft
guidance neither bans product names containing the example terms, nor
does it require brand names to be revised. Rather, it clarifies that
product names containing certain terms could potentially be false or
misleading and provides options available to registrants for addressing
such issues with the agency.
Question 4b. What type of economic analysis has EPA done on the
economic impacts to pesticide manufacturers, garden centers, retail
stores and other businesses that sell pesticide products?
Answer. The Agency is not required to conduct, and has not
prepared, a formal economic analysis of proposed policies such as this.
Nonetheless, the EPA works with pesticide companies and others on PR
notices and takes into account the economic impacts. As mentioned in
the previous two answers, the EPA is considering narrowing the scope of
the notice, which would decrease the number of products that might be
affected by about \2/3\ (66 percent). Therefore, the EPA estimates that
only a very small percentage of all pesticide product brand names for
current federally registered products would be likely to take any
action in response to the PR Notice. Further, the PR Notice offers
registrants simple and workable alternatives to changing or removing
names such as by using disclaimers, qualifying statements, changing
font type and size, and other methods short of removal or changes of
trademarked names.
Question 4c. Can EPA provide the Committee with assurances that it
will refrain from requiring registrants to change existing product
brand names through the registration process until a formal policy is
finalized?
Answer. The EPA agrees that the draft PR Notice should not be
implemented until we have duly considered all public comments received
and have issued a final and effective PR Notice. However, in the
absence of a final PR Notice, the EPA must continue to respond to
potentially false or misleading terms in product brand names in a
manner that is consistent with the law.
Question 5. Administrator Jackson, On January 7th your Agency
declared that the purposeful introduction of fluoride, at significant
levels, into drinking water is a critical public health practice that
needs to continue. As you know, the Centers for Disease Control have
called community water fluoridation one of the ``ten greatest public
health achievements of the 20th century''. However, 3 days later, your
agency proposed to prohibit the use of a vital food protection
product--a product necessary to protect the US food supply--because it
results in a small amount of fluoride to be introduced to the diet of
some individuals.
Administrator Jackson--your agency is saying ``Because we're
worried about your health . . . we need to put it in your drinking
water. BUT, because we're worried about your health . . . we need to
take it out of your food.''
Don't you agree that this is approach to public health, protection
of the food supply and the environment is absurd? Wouldn't you agree
that there HAS to be a better solution than this?
Answer. The EPA, the Centers for Disease Control and Protection
(CDC), and the U.S. Food and Drug Administration (FDA) worked closely
to reach a shared understanding of the latest science on fluoride, in
order to ensure a consistent, comprehensive approach. The agencies have
concluded that the amount of fluoride to which people in the United
States are exposed has increased over the last several decades since
the introduction of drinking water fluoridation and consumer dental
products (such as fluoride toothpaste and mouth rinses). This has led
to a large decline in the prevalence of tooth decay, but has also been
accompanied by a modest increase in the prevalence of dental fluorosis,
a condition caused by fluoride over exposure that can cause dental
effects ranging from barely visible lacey white markings, to more
severe staining or pitting of the tooth's enamel. The proper levels of
fluoride provide important benefits to dental health, and the majority
of the United States population is not exposed to excessive levels.
However, fluoride exposure is too high for some children, particularly
those who live in areas with high levels of naturally occurring
fluoride in drinking water.
The EPA is currently examining the fluoride drinking water standard
and considering whether to lower the maximum amount of fluoride allowed
in drinking water, which is set to prevent adverse health effects. In
addition, the EPA is proposing to withdraw the fluoride tolerances for
the fumigant sulfuryl fluoride because Section 408 of the Federal Food,
Drug, and Cosmetic Act (FFDCA) prohibits the EPA from establishing
tolerances for pesticides if aggregate exposure (exposure from all non-
occupational sources, including drinking water and dental products) is
not safe. Based on the recommendation of the National Academies of
Science, as well as the EPA risk assessments, the EPA has determined
that, in areas where drinking water contains naturally high fluoride
levels, aggregate exposures to fluoride for infants and children under
the age of seven years old can exceed a level that can cause severe
dental fluorosis. The EPA recognizes that in most such cases, pesticide
residues would not be a primary source of exposure and removing such
residues would generally not have a significant impact on risk or
public health. EPA also recognizes the significant benefits that
several uses of sulfuryl fluoride provide, but considerations such as
these are not relevant under FFDCA Section 408 which requires the EPA
to base its tolerance decisions on risk alone, even when the
incremental risk is small. As explained in the Federal Register notice
announcing its proposal in response to objections to the sulfuryl
fluoride tolerances, EPA thinks that this action is required by Section
408 of the FFDCA. The Federal Register notice containing EPA's proposal
discusses the possible adverse impacts on public health and other
consequences from a final decision to revoke the sulfuryl fluoride
tolerances.
The EPA's proposed decision on sulfuryl fluoride was published in
the Federal Register on January 19, 2011. The Agency accepted comments
through July 5, 2011, and anticipates issuing a final decision in 2012.
The EPA has proposed a three year phase out for most sulfuryl fluoride
uses in order to provide time for users to transition to alternative
treatments; the phase out time would not begin until 60 days after the
EPA publishes the final order in the Federal Register, likely in 2012.
Questions Submitted by Hon. Dennis A. Cardoza, a Representative in
Congress from California
Question 1. Administrator Jackson, the EPA recently announced an
advance notice of proposed rulemaking seeking public input on the
effectiveness of current water quality programs influencing the health
of the San Francisco Bay Delta Estuary. The ANPR solicits comment on
topics, such as potential site-specific water quality standards and
site-specific changes to pesticide regulation. Can you explain the
EPA's intent with this recent announcement? How do you intend to
coordinate and work within the current BDCP process without causing
more harm than good?
Answer. The EPA committed to complete this advance notice of
proposed rulemaking (ANPR) and public solicitation process in the
Interim Federal Action Plan (IFAP) for the California Bay Delta Estuary
developed in 2009 by six Federal agencies. The IFAP describes various
actions Federal agencies committed to undertake, with the State of
California, to investigate and mitigate the impacts of all stressors on
the imperiled native species and the Bay-Delta Estuary aquatic
ecosystem; to encourage smarter water use; to help deliver drought
relief services; and to ensure integrated flood risk management. Water
quality in the Bay Delta Estuary and its tributaries is impaired,
contributing to the current ecological and water supply crisis.
Specifically, the EPA's role in this initiative is to ``assess the
effectiveness of the current regulatory mechanisms designed to protect
water quality in the Delta and its tributaries.'' This ANPR is the
start of this assessment.
The comment period for the ANPR closed on April 25, 2011. The EPA
will review the public responses to the ANPR, along with the
significant scientific information developed about Bay Delta Estuary
aquatic resources. We will synthesize all available information and
develop a strategic proposal on how to use the EPA's authorities and
resources to achieve water quality and aquatic resource protection
goals in the Bay Delta. We will collaborate with the state and regional
water boards, as well as with other agencies and stakeholders, to
assure that our collective efforts are effective and efficient.
At the same time, the Bay Delta Conservation Plan (BDCP) is being
developed as a habitat conservation plan under the Federal Endangered
Species Act and the state Natural Community Conservation Plan Act and
is targeted to address primarily the impacts of the state and Federal
water export facilities on endangered and threatened species. The BDCP
is expected to include proposals for changing how water is diverted and
conveyed through the Bay Delta Estuary to the state and Federal water
export pumping facilities in the south Delta. The EPA's
responsibilities under the Clean Water Act to protect designated uses
of waterbodies, that may include estuarine habitat, fish migration, and
threatened and endangered species, overlap with ESA requirements being
addressed in the BDCP. Some actions taken pursuant to the BDCP will
need to comply with both the ESA and Clean Water Act. To that end, the
EPA will ensure that any action it might take as a result of this ANPR
will be closely coordinated with other Federal and state actions
related to the BDCP, any biological opinions on water operations
affecting the Bay Delta Estuary, and any other actions requiring ESA
compliance.
Question 2. Administrator Jackson, EPA recently proposed to
withdraw food tolerances of sulfuryl fluoride, a product critical to
the protection of U.S. agriculture and especially specialty crops in
California. This move is puzzling to me because it will negatively
impact public health by increasing the potential for contamination and
diminish producers' ability to export goods to foreign markets. Why is
EPA issuing this proposal now? Can you tell me who are the actual
beneficiaries of this proposed EPA action? And why is the Agency taking
such an action given the importance of this product to agriculture and
public safety?
Answer. As explained in the Federal Register notice announcing its
proposal in response to objections to the sulfuryl fluoride tolerances,
EPA thinks that this action is required by Section 408 of the Federal
Food, Drug, and Cosmetic Act (FFDCA). The Federal Register notice
containing EPA's proposal discusses the possible adverse impacts on
public health and other consequences from a final decision to revoke
the sulfuryl fluoride tolerances.
The EPA, the Centers for Disease Control and Protection (CDC), and
the U.S. Food and Drug Administration (FDA) worked closely to reach a
shared understanding of the latest science on fluoride, in order to
ensure a consistent, comprehensive approach. The agencies have
concluded that the amount of fluoride to which people in the United
States are exposed has increased over the last several decades since
the introduction of drinking water fluoridation and consumer dental
products (such as fluoride toothpaste and mouth rinses). The EPA's
fluoride risk assessment showed that children--particularly those
living in those areas with naturally occurring high levels of fluoride
in the drinking water supply--are exposed to fluoride levels that can
cause severe dental fluorosis. Withdrawal of the sulfuryl fluoride
tolerances will reduce these children's level of fluoride exposure. The
EPA is also currently examining the fluoride drinking water standard
and considering whether to lower the maximum amount of fluoride allowed
in drinking water.
The EPA is proposing this action on sulfuryl fluoride because the
governing statutory provision, Section 408 of the FFDCA, bars the EPA
from establishing tolerances for pesticides if aggregate exposure
(exposure from all nonoccupational sources, including drinking water
and dental products) is not safe. Based on the recommendation of the
National Academies of Science as well as the EPA risk assessments, the
EPA has determined that aggregate exposure to fluoride exceeds levels
that can cause severe dental fluorosis in areas where drinking water
contains naturally high fluoride levels. The EPA recognizes the
significant benefits that several uses of sulfuryl fluoride provide and
also the key role the availability of sulfuryl fluoride serves in
helping the EPA meet its obligations under the Montreal Protocol to
reduce the use of the stratospheric depleting pesticide, methyl
bromide. Nonetheless, considerations such as these are not relevant
under FFDCA Section 408 which requires the EPA to base its tolerance
decisions on risk alone. EPA believes it has no discretion in this
area; we are required by Section 408 to remove tolerances when
aggregate exposure exceeds the safe level, even if only by a small
amount for highly exposed populations, and even where the exposure from
pesticide residues is insignificant compared with other sources of
exposure, as in the case of fluoride.
The EPA's proposed decision on sulfuryl fluoride was published in
the Federal Register on January 19, 2011. The agency accepted comments
through July 5, 2011, and anticipates issuing a final decision in 2012.
The EPA has proposed a three year phase out for most sulfuryl fluoride
uses in order to provide time for users to transition to alternative
treatments; the phase out time would not begin until 60 days after the
EPA publishes the final order in the Federal Register, likely in 2012.
Question 3. Every year the USDA and EPA work in conjunction to
release the Pesticide Data Program report. This report is an important
tool for EPA in setting tolerance levels for pesticide residues for
various commodities. The report demonstrates a robust reporting process
and year after year shows that the vast majority of fruits and
vegetables fall overwhelmingly below the tolerances set by EPA. Yet,
every year there are groups which misconstrue this data to suggest
certain conventionally grown commodities are unsafe for consumption.
Can your office begin defending both the robust process which generates
this report and the findings which demonstrate that safety of the food
supply?
Answer. The U.S. Department of Agriculture's (USDA) Pesticide Data
Program (PDP) provides high quality, indispensable pesticide monitoring
data that is invaluable to the EPA in producing realistic pesticide
dietary exposure assessments as part of its effort to implement the
1996 Food Quality Protection Act. The EPA works with USDA to ensure the
information released through the PDP program is accurately described to
the public.
PDP monitoring activities are a Federal-state partnership. Samples
of fruit, vegetables, and other commodities are collected from 10
participating states from all regions of the country representing 50
percent of the U.S. population. Samples are apportioned according to
each state's population and the commodities selected are chosen, in
part, for their significance in the diet. Specific emphasis is placed
on sampling fruits and vegetables commonly consumed by children. The
samples are collected close to the point of consumption--at terminal
markets and large chain store distribution centers--immediately prior
to distribution to supermarkets and grocery stores. Samples are
collected based on a sampling design method that ensures that
monitoring data are nationally representative of the U.S. food supply.
They represent food that is typically available to the consumer for
purchase throughout the year to provide the best available realistic
estimate of exposure to pesticide residues in foods.
The data collected under this program is ideal in many respects for
use in the EPA's exposure assessment for pesticides: samples are
collected as close to the point of consumption as possible (while still
retaining the identity of product origin) and sampling is based on
statistically reliable protocols. Over the last 15 years, PDP has
collected tens of thousands of samples of 85 different commodities,
analyzing for over 440 pesticides. During this time, only a small
percentage of these samples found (1) pesticide concentrations above
the legal limit allowed (referred to as a tolerance) or (2) pesticide
residue on commodities that do not have a tolerance established for
that chemical (while the presence of such residue may be illegal, it is
not necessarily unsafe). The EPA routinely uses USDA's PDP data as a
component of its risk assessments to ensure that risk estimates for the
U.S. population and various subgroups are safe--that is, there a
reasonable certainty of no harm.
Question Submitted by Hon. Reid J. Ribble, a Representative in Congress
from Wisconsin
Question. I appreciate that EPA intends to finalize an exemption
for dairy under the Spill Prevention, Control, and Countermeasure rule.
However, I have heard increasing concern from Wisconsin farmers about
regulatory uncertainty because the Agency has yet to do so. When does
EPA plan to finalize this exemption? This process is cause for concern
about EPA's overall methodology, seeing as milk is already regulated
for quality and safety.
Answer. On April 12, 2011, the EPA issued its final rule exempting
milk and milk product containers from the Oil Spill Prevention,
Control, and Countermeasure (SPCC) rule. The final rule was published
in the Federal Register on April 18, 2011 and became effective on June
17, 2011.
Questions Submitted by Hon. Mike McIntyre, a Representative in Congress
from North Carolina
Question 1. Administrator Jackson, 2 weeks ago, the Secretary of
Agriculture gave testimony before this Committee on the current state
of the agriculture industry. I don't think that anyone on this
Committee would disagree with me that your Agency, the EPA, was the
most talked about topic by Members of this Committee. Whether you
realize it or not, my constituents and many American farmers are very
worried and upset over the number of regulations coming out of EPA that
negatively impact farmers and ranchers. Given that perception can
become reality, how do you intend to improve the EPA's record in the
future? What fundamental changes in EPA's relationship with the
agricultural community are you willing to commit to today?
Answer. The EPA is committed to providing an effective opportunity
for input from all stakeholders in shaping environmental protection
strategies including input from the agricultural community. We have
established a Federal advisory committee, The Farm, Ranch, and Rural
Communities Committee, to provide advice to the agency. My office is
directly engaged in facilitating the work of the Committee which is
currently deliberating the most effective approaches to protecting
water quality in agriculture.
Each of our Regional Administrators has an agriculture advisor who
interacts directly with the agriculture community, including state and
local agricultural organizations. The EPA is currently engaged in a
series of intensive listening sessions with agricultural and other
stakeholders to solicit their views on the issues surrounding emissions
of particulate matter. The EPA Office of Pesticide Programs also
conducts an active Federal advisory committee to solicit input from a
wide range of stakeholders on pesticide issues, particularly those that
affect agriculture.
In addition, I will continue to travel to farm communities to talk
directly with farmers and will continue to join Secretary Vilsack in
meeting with commodity groups and farm organizations. The EPA finds
these discussions a valuable opportunity to keep agricultural
stakeholders informed about agency initiatives and to get feedback from
them on these issues. The agency often solicits agriculture community
views on the EPA's efforts to promote environmental quality and
willingly accepts invitations to meet. The EPA will continue to promote
opportunities to engage and inform all stakeholder groups, including
those representing agriculture.
Question 2. Administrator Jackson, with regard to the national
ambient air quality standards (NAAQS) for ozone? What are the parts per
billion the EPA is considering?
What would be the economic impact of lowering the standard to
between 60 and 70 ppb?
How does the EPA, or how will the EPA, work with communities that
it designates as in nonattainment if there is a disagreement about the
designation? For instance--if there are objections about the location
of air monitors or if a community is already under an existing plan to
improve air quality. Will the EPA work with them in a positive and
collaborative manner?
Answer. On September 2, 2011, the Administration withdrew the final
rule for the reconsidered 2008 ozone National Ambient Air Quality
Standards (NAAQS) from interagency review and is now proceeding with
implementation of the current ozone NAAQS of 0.075 ppm (or 75 parts per
billion).
When implementing a new or revised NAAQS, the EPA and states work
together in a collaborative manner prior to final designations. The
Clean Air Act outlines the process for initial area designations
following the establishment of new or revised NAAQS (see section
107(d)). This includes: (1) the EPA guidance to states on the
designation process, including the factors the EPA intends to use to
evaluate appropriate boundaries for nonattainment areas; and, (2) a
process for states to submit designation recommendations, which the EPA
carefully considers. If the EPA intends to promulgate a designation
different from a state recommendation, the EPA must notify the state at
least 120 days prior to promulgating the final designation. The EPA
must also provide the state an opportunity to demonstrate why the
potential modification is inappropriate.
For the ozone NAAQS, the EPA recently announced that it will be
proceeding with initial area designations under the 2008 standard,
starting with the recommendations states made in 2009 and updating them
with the most current, certified air quality data. Because the agency
has these recommendations from the states and quality assured data for
2008-2010, there is nothing that state or local agencies need to do
until the EPA issues any proposed changes to the states'
recommendations (the ``120-day letters``) later this fall, though of
course, states are welcome to contact the EPA to discuss specific
issues at any time.
Question 3. Administrator, there have been guidance documents
seeking clarification of both the Solid Waste Agency of Northern Cook
County (SWANCC) and Rapanos court decisions, but the uncertainties
about the Federal jurisdiction over wetlands and other waters remains
highly controversial. The new draft guidance document was recently
released to Inside EPA.
What are the differences between this guidance and the ones
previously released? What stage in the process is the document?
In North Carolina, many farmers are worried that many new water
bodies are going to fall under EPA and Army Corps regulation and
require Federal permits. Under the draft guidance currently at OMB, how
broadly do you expect the impacts to be on agriculture? Does the EPA
envision regulating farm ponds and other water bodies located on farms?
Answer. The EPA and the U.S. Army Corps of Engineers (Corps) have
drafted guidance that clarifies those waters over which the agencies
will assert jurisdiction consistent with the Clean Water Act (CWA),
implementing regulations, and Supreme Court interpretations. The draft
guidance cannot and does not alter existing requirements of the law; it
merely explains how the agencies think existing law should be applied
in general, and emphasizes that it may not be applicable in particular
cases. The agencies have worked carefully to assure that the draft
guidance is consistent with the law and would not impact any of the
existing statutory or regulatory exemptions for the nation's farmers.
The agencies understand the important role played by farmers in
conserving and protecting clean water and the environment. The EPA and
the Corps released the draft guidance for public notice and comment on
May 2, 2011 with a 60 day comment period; this comment period was later
extended until July 31, 2011. The agencies are now reviewing the
comments received and will make decisions regarding any final guidance
after carefully evaluating comments provided by the public. The
agencies also expect to proceed with notice and comment rulemaking to
further clarify the regulatory definition of the term ``waters of the
United States,'' and to provide the public with an opportunity to
participate in decisions regarding changes to the agencies'
regulations. All exemptions for agriculture in the CWA and its
implementing regulations would remain unchanged by the guidance,
including the EPA's longstanding interpretation of 404(f)(1)(c)
exempting farm ponds from CWA section 404 permitting requirements.
Questions Submitted by Hon. Tim Huelskamp, a Representative in Congress
from Kansas
Question 1. In Parsons, KS, there is an ammunition depot that was
closed during the latest round of the BRAC (Base Realignments and
Closures) process in 2005. While the Army is attempting to close the
base and turn it over to a redevelopment authority organized by the
local community, you have attempted to require the Army and the
community to make environmental improvements to the facility above and
beyond those that are statutorily mandated. From where does the EPA
believe their statutory authority governing these particular demands
come? Further, I request the EPA provide documentation of this
authority.
Answer. EPA believes that its authority to address environmental
conditions at the Kansas Army Ammunition Site (KSAAP) site comes
primarily from the Resource Conservation and Recovery Act (RCRA) and
the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA). A RCRA permit was issued for the KSAAP site in 1989,
which pursuant to requirements of RCRA section 3004(u) included a
provision for ``corrective action''--the requirement to clean up
releases of both hazardous wastes and hazardous constituents.
The Army is expected to finalize its transfer to the developer in
the November/December 2011 timeframe. EPA and the state initiated the
30 day public notification process on September 28, 2011, to modify the
existing RCRA corrective action permit that will ultimately facilitate
the transfer of the KSAAP facility to the developer and the operating
contractor after the land transfer occurs. The details of remediation
requirements are being negotiated between EPA, DOD, the state, and the
developer.
Question 2. Do you intend to conduct a comprehensive cost-benefit
analysis prior to proposing any changes to regulations concerning farm
dust? What mitigation steps would you propose to ensure compliance with
dust-related air quality standards?
Answer. I committed in an October 17, 2011 letter that the EPA will
send to the Office of Management and Budget a proposal to keep the
PM10 national ambient air quality standard as it is, with no
change. This existing standard has been in effect since 1987. I am
hopeful that this announcement ends the myth that the agency has plans
to tighten regulation of farm dust.
Questions Submitted by Hon. Larry Kissell, a Representative in Congress
from North Carolina
Question 1. Administrator Jackson, while I am concerned with the
impact of coarse particulate matter or PM10 standards
pertaining to farm equipment and rural roads, I am also troubled by the
impact that the EPA's PM2.5 standard may also have on rural
America. PM2.5 limits are currently set at 15 parts per
billion (ppb), and now EPA is looking to make the PM2.5 rule
even stricter. New levels being considered are between 12-14 ppb--which
are approaching naturally occurring background levels. For example,
naturally occurring levels in rural North Carolina are at 12.8 ppb.
Concerns over these new levels have prevented Charlotte Pipe from
building a new green foundry in a rural area of my district. This rule
could impact hundreds of other manufacturers that want to expand their
capacity or build a new facility, and potentially not allow new jobs to
enter rural America where they are surely needed.
Should, in the case of a new greener foundry replacing an older
facility or the greener retrofitting of an old foundry be judged by the
lessening of the particulate matter emitted relative to the old
facility, rather than the aggregate particulate matter present in the
location where the new facility is located?
Answer. The National Ambient Air Quality Standards (NAAQS) are set
to protect public health and the environment. It is not the intent of
the Clean Air Act (CAA) to prohibit the development of cleaner sources.
If the new foundry is built at the same location as the older facility,
then the greener facility likely would not increase emissions in the
area, and therefore not trigger additional requirements for evaluating
emissions increases. If the new foundry is built at a different
location, the CAA requires that the surrounding area will still remain
within acceptable air quality levels. The source will need to assess
its air quality impacts and can work with the state and the EPA
regional office to determine any appropriate steps to address impacts
that exceed CAA levels. In North Carolina, the state is the permitting
authority, and the CAA provides them the flexibility to determine what,
if any, additional controls are needed in an area to ensure local air
quality is protected.
Question 2. Agribusiness retailers form the heart of fertilizer
distribution in the U.S. and provide precision application that targets
nutrients where they are needed. There are 6,800 agribusiness retailers
in the country, almost a third of which are small businesses.
The EPCRA statute contains several exemptions from the definition
of a hazardous chemical, including ``fertilizer held for sale by a
retailer to the ultimate customer'' (hereinafter the ``fertilizer
retail exemption'').
After 20 years of EPA upholding this exemption, Region 6 has
reversed course and began enforcement and HQ staff are asserting that
it no longer applies to simple mixing of fertilizers (with no chemical
reaction)? Can you please explain to the Committee why the Agency has
chosen to side-step Congressional intent as it relates to the
``fertilizer retail exemption'' and what further action do you plan to
take as it relates to this issue?
Answer. The EPA's Region 6 has not taken any enforcement actions
under section 312 of the Emergency Planning and Community Right-to-Know
Act (EPCRA) for fertilizers and there has not been any policy change
regarding the fertilizer exemption.
Sections 311 and 312 of EPCRA apply to owners and operators of
facilities that are required to prepare or have available a material
safety data sheet (MSDS) for a hazardous chemical defined under the
Occupational Safety and Health Act (OSHA) Hazard Communication Standard
(HCS). If the hazardous chemical is present at or above the reporting
thresholds specified in 40 CFR part 370, the facility owner or operator
is required to submit a material safety data sheet (MSDS) or a list
that contains the hazardous chemical under section 311 of EPCRA. Under
section 312 of EPCRA, if a hazardous chemical is present at or above
the reporting threshold specified in 40 CFR part 370, the facility
owner or operator is required to submit an emergency and hazardous
chemical inventory form (Tier I or Tier II) to the State Emergency
Response Commission (SERC), Local Emergency Planning Committee (LEPC)
and the local fire department annually by March 1. This information is
made available to the public by the LEPCs so they have information on
the chemicals in process or being used in their community.
Section 311(e)(5) of EPCRA exempts from the definition of a
hazardous chemical ``any substance to the extent it is used in routine
agricultural operations or a fertilizer held for sale by a retailer to
the ultimate customer.'' Thus, if a retail facility sells fertilizer to
a farmer, those fertilizers are exempt from reporting under Section 311
and 312 of EPCRA. However, there are examples where these retail
facilities also blend various fertilizers to create a unique
fertilizer. We are currently evaluating this scenario to determine how
the retailer fertilizer exemption in EPCRA applies and engaging with
industry to better understand the situation. The agency will keep the
Committee and the agricultural community informed of any results from
the evaluation.
Questions Submitted by Hon. Jeff Fortenberry, a Representative in
Congress from Nebraska
Question 1. Does the EPA plan to regulate low capacity on-farm fuel
storage?
Answer. The Oil Spill Prevention, Control, and Countermeasure
(SPCC) rule is not directed toward low capacity oil storage. It applies
to farms that store more than 1,320 U.S. gallons in total of all
aboveground containers or more than 42,000 gallons in completely buried
containers.
Question 2. Does the EPA plan to regulate livestock emissions?
Answer. Under the Mandatory Reporting of Greenhouse Gases (GHG)
rule, certain livestock facilities with manure management systems with
emissions equal to or greater than 25,000 metric tons of carbon dioxide
equivalent (CO2e) per year from a manure management system
are required to report. No other GHG emission sources associated with
agriculture are covered. However, the EPA is not currently implementing
this part of the rule (subpart JJ) due to a Congressional restriction
prohibiting the expenditure of funds in fiscal year 2011 for this
purpose.
Questions Submitted by Hon. Randy Hultgren, a Representative in
Congress from Illinois
Question 1. If EPA and the Corps were to adopt the Draft 2010 Clean
Water Protection Guidance as a final document, is there any water body
or wetland that lies within the same watershed as a navigable or
interstate water that would not have a ``significant nexus'' to that
navigable or interstate water?
Under the Guidance, a ``significant nexus'' is sufficient to
establish jurisdiction, so doesn't that mean that EPA or the Corps
could assert jurisdiction over any water body or wetland?
Answer. The agencies do not believe that all water bodies and
wetlands would be determined to be jurisdictional under the draft
guidance. For example, most water bodies and wetlands historically
regulated under the ``other waters'' provision of our regulations would
not be found jurisdictional under the draft guidance. As stated in the
guidance, while each situation must be evaluated on a case-by-case
basis, the agencies believe that most streams that flow into a
traditional navigable or interstate water, as well as their neighboring
wetlands, would be found to have a significant nexus to such downstream
waters. We believe this is fully consistent with the SWANCC and Rapanos
decisions and generally reflects the agencies' current interpretation
of the scope of Clean Water Act jurisdiction. As a result, the agencies
do not believe that the guidance, if finalized, would result in a
significant change in Clean Water Act jurisdiction.
The agencies released the draft guidance for public notice and
comment on May 2, 2011 with a 60 day comment period; this comment
period was later extended until July 31, 2011. The agencies are now
reviewing the comments received and will make decisions regarding any
final guidance after carefully evaluating comments provided by the
public.
Question 2. The draft guidance provides no exceptions that are not
in the statute or in existing regulations. Isn't it true that under the
draft guidance EPA and the Corps could regulate almost any waters body
or wetland on a case-by-case basis, even if the guidance says they are
``generally not jurisdictional?''
These water bodies include ditches constructed wholly in dry land,
artificial lakes and ponds used for stock watering or irrigation, rice
fields, even water filled depressions from construction activity.
Nothing in the guidance stops EPA or the Corps from arguing that a
``significant nexus'' exists between those water bodies and downstream
navigable or interstate waters.
Answer. No. Past guidance issued by the agencies in 2008 also
identified specific types of water as ``generally not jurisdictional''
such as swales or erosional features and upland ditches. Since that
guidance was issued, the agencies have asserted jurisdiction over few,
if any, of these waters. The draft guidance will not change this
position.
Question 3. In the SWANCC case, the court addressed an old quarry
that was proposed to be filled in as a landfill. The Corps asserted
jurisdiction because the quarry was used by migratory birds. The
Supreme Court said no. Under the draft guidance, couldn't EPA and the
Corps assert jurisdiction over that quarry because it holds water and
lies within in a watershed, even though it is isolated?
Answer. No, the guidance will not result in jurisdiction over the
waters at issue in SWANCC.
Question 4. Why are EPA and the Corps trying to change the policies
of their agencies through a guidance document? The courts have said
that an agency cannot do that without going through notice and comment
rulemaking.
Answer. Guidance was previously issued by the agencies on this
important issue in 2008. The agencies believe that farmers, homeowners,
businesses, and others deserve additional transparency, consistency,
and predictability in the process for identifying which waters are, or
are not, subject to the requirements of the Clean Water Act. We do not
believe that the 2008 guidance provides the necessary clarity and are
therefore working to develop replacement guidance. The EPA and the U.S.
Army Corps of Engineers (Corps) released the draft guidance for public
notice and comment on May 2, 2011 with a 60 day comment period; this
comment period was later extended until July 31, 2011. The agencies are
now reviewing the comments received and will make decisions regarding
any final guidance after carefully evaluating comments provided by the
public. The agencies also expect to proceed with notice and comment
rulemaking to further clarify the regulatory definition of the term
``waters of the United States.''
Question 5. Why is EPA taking a single opinion and making it the
law of the land? Courts have said that you can't turn a dissent into a
majority opinion by combining it with a concurring opinion to argue
that the position of the dissent and the concurrence constitute the
opinion of the court--but isn't that what EPA and the Corps is
proposing to do in the draft guidance?
Answer. It is the position of the United States that in the wake of
Rapanos, Clean Water Act (CWA) jurisdiction may be established using
the standard set forth in either the plurality or Justice Kennedy's
opinion. The U.S. established this position in the previous
administration. This position is consistent with Supreme Court case law
governing interpretation of the opinions of a divided court. Indeed,
the four dissenting Justices in Rapanos, who would have affirmed the
court of appeals' application of the Corps's regulations, stated
explicitly that either the plurality test authored by Justice Scalia or
the significant nexus test authored by Justice Kennedy could be used to
determine CWA jurisdiction because they would uphold jurisdiction under
either test.
Question 6. The draft guidance goes far beyond even Justice
Kennedy's opinion in the Rapanos case. In Rapanos, Justice Kennedy
suggested that in some cases Justice Scalia's test would be broader
than Justice Kennedy's ``significant nexus'' test. Justice Kennedy said
that a surface water connection may not constitute a significant nexus
if it was small and remote. In contrast, the draft guidance takes a
very broad view of what is a tributary (and includes ephemeral streams)
and then presumes that anything that can be considered a tributary has
a significant nexus even if it has a small or no impact on downstream
waters.
The draft guidance also says it does not matter how remote the
waterbody is.
So, even if it is valid for EPA and the Corps to rely on the
Justice Kennedy's significant nexus test, how can it go beyond it and
assume jurisdiction over remote water bodies that have little or no
impact on downstream waters?
Answer. The agencies do not believe that all water bodies and
wetlands would be determined to be jurisdictional under the draft
guidance. For example, most water bodies and wetlands historically
regulated under the ``other waters'' provision of our regulations would
not be found jurisdictional under the draft guidance. As stated in the
guidance, while each situation must be evaluated on a case-by-case
basis, the agencies believe that most streams that flow into a
traditional navigable or interstate water, as well as their neighboring
wetlands, would likely be found to have a significant nexus to such
downstream waters. We believe this is fully consistent with the SWANCC
and Rapanos decisions and generally reflects the agencies' current
interpretation of the scope of Clean Water Act jurisdiction. As a
result, the agencies do not believe the guidance, if finalized, would
result in a significant change in Clean Water Act jurisdiction.
Question 7. EPA has proposed regulations for coal ash disposal that
include a possible ``hazardous waste'' designation. One of the
materials included in that category is synthetic gypsum produced by
power plants that can be safely and effectively used in agricultural
applications.
Doesn't it create a serious regulatory barrier to productively
using a product when you label it a ``hazardous waste'' on the property
of the person who makes it? If you were a farmer, would you want to
place a material on your fields that the government considers hazardous
waste on the property of the person who makes it?
Answer. The EPA's proposed rulemaking on the management of coal
combustion residuals (CCRs) addresses CCRs that are being disposed. The
proposed rule acknowledges that there are significant benefits that can
be derived from the use of CCRs in agricultural applications and that
the EPA and the U.S. Department of Agriculture's Agricultural Research
Service are engaged in field studies, expected to conclude in late
2012. The agency did request comments, information, and data on CCRs
that are beneficially used in agriculture, but did not propose to
regulate the beneficial use of CCRs in agricultural applications. As
for the potential stigma that hazardous waste disposal requirements
could have on beneficial use, the EPA recognized that issue in the
proposal, solicited comment, and will carefully evaluate the
information received prior to any final regulatory decision.
Question 7a. Are you aware that synthetic gypsum from power plants
is not ``coal ash'' at all--but rather a byproduct of another process
at the power plants? If it's not coal ash, why are you including it in
the regulations you are developing?
Answer. The EPA's proposed rule addresses the management of coal
combustion residuals (CCRs) from electric utilities. CCRs and ``coal
ash'' are broad terms that refer to a range of residuals produced from
the combustion of coal, including fly ash, bottom ash, slag, and flue
gas emission control wastes. We are aware of the processes used to
produce synthetic gypsum from flue gas desulphurization materials, and
are carefully considering the comments regarding whether synthetic
gypsum derived from coal combustion residuals warrant regulation.
Question 7b. Does synthetic gypsum qualify as a ``hazardous waste''
based on its toxicity? Then why do you want to label it as hazardous
and create all of this confusion?
Answer. Wastes may be deemed hazardous in two possible ways: (1)
because the waste is ignitable, corrosive, reactive, or exceeds certain
clearly hazardous toxicity characteristics; or, (2) the EPA lists
(through rulemaking and with consideration of public comment) a
particular waste or category of wastes as hazardous, if it is
determined that the waste poses substantial present or potential hazard
to human health and the environment when managed in certain ways such
as land disposal.\3\ With regard to coal combustion residuals (CCRs),
they are not ignitable, corrosive, or reactive, and rarely exceed the
toxicity characteristic, and thus the issue in the proposed rule
centers around whether the waste poses a hazard to human health and the
environment when managed in certain ways such as land disposal. In a
listing determination, the EPA will evaluate factors such as the
toxicity and concentration of constituents in a waste, the volume of
waste and how it is managed, the potential for the constituents to
migrate, and damage cases resulting from exposure to and release of
CCRs. The EPA will also conduct extensive risk modeling for various
disposal scenarios. The EPA relied upon its analysis of these factors
in drafting its proposed CCR rule and will carefully evaluate the
information and comments it received in response to the proposed rule,
prior to issuing any final rule regarding the classification of CCRs
being disposed.
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\3\ For additional information about designating hazardous wastes,
see http://www.epa.gov/osw/hazard/dsw/index.htm.
Question 7c. EPA previously supported the use of synthetic gypsum
in agriculture, but canceled the C2P2 program that provided that
support. Is there a reason you did not notify your partner, the
Department of Agriculture, before you terminated that program? Do you
have any plans to resume active support for recycling coal ash and
synthetic gypsum?
Answer. While the EPA is engaged in the rulemaking process for coal
combustion residuals, the agency has suspended active participation in
the Coal Combustion Products Partnership. The EPA continues to believe
that the beneficial use of residuals from coal combustion, when
performed properly and in an environmentally safe manner, is beneficial
to the environment and the EPA is not proposing to modify the existing
exemption for coal ash when beneficially used. The EPA is interested in
broadening the dialogue on beneficial uses and encourages all
interested parties to review and provide comments and any relevant
information and data on the proposed rule.
Question 7d. The people who use synthetic gypsum for agriculture
now face a huge regulatory uncertainty because of the coal ash
rulemaking. When do you plan to complete this rule? Do you think it is
fair to tell the world that you might decide to call this material a
``hazardous waste'' and then let people who want to recycle it just
hang there for years while you think about it?
Answer. The agency is in the process of reviewing and addressing
more than 450,000 comments received on the proposed coal ash rule. In
addition, the EPA and the U.S. Department of Agriculture are conducting
a joint study on the use of flue gas desulphurization (FGD) gypsum in
agriculture. In the preamble of the proposed rule, the EPA indicated
that study should be completed at the end of 2012. Users of CCR in
agriculture are encouraged to review the basic guidance provided in the
interim report (Agricultural Uses for Flue Gas Desulfurization (FGD)
Gypsum, March 2008, EPA530-F08-009) \4\ pending completion of the
study. The report references several resources for responding to
questions including: the EPA's Industrial Waste Management Evaluation
Model (IWEM) and the chapter on land application (Chapter 7) in the
associated Guide for Industrial Waste Management http://www.epa.gov/
epawaste/nonhaz/industrial/guide/index.htm, the state's department of
environmental protection, department of agriculture, and agricultural
extension service, and the USDA Natural Resources Conservation Service.
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Questions Submitted by Hon. Scott R. Tipton, a Representative in
Congress from Colorado
Question 1. Many of EPA's recent regulatory activities are in areas
where there is a significant component of state delegated authorities
and responsibilities (NPDES permitting, soil fumigant label changes,
contemplated changes to PM10 standards, etc.). State budgets
aren't growing. Additional resources are difficult to come by. How will
states pay for these activities? If additional resources are not
available, what regulatory or enforcement activities should states NOT
do in order to take on these new responsibilities?
Answer. The EPA and states share responsibility and accountability
for assuring compliance with environmental laws and regulations to
protect human health and the environment. Congress envisioned
cooperative implementation of its laws by the EPA and authorized or
delegated states to do the majority of the day to day work to implement
our environmental programs by developing standards, issuing permits,
conducting inspections and taking enforcement actions. The EPA develops
national standards, programs, policies and guidance, conducts
inspections and takes enforcement actions in situations of national
interest, and oversees state programs.
There are a number of flexibilities afforded the EPA regions and
states as they plan compliance and enforcement activities. For example,
the Compliance Monitoring Strategies (CMS) are important tools for
targeting inspection resources on the most important sources of
pollution. The CMS provide flexibilities for the EPA regions, states,
and territories in establishing inspection coverage over a range of
sources. Through the annual planning process, the EPA regions, states,
and territories are encouraged to establish specific commitments and
targets for inspection coverage across sources and to strategically
target their inspection programs, and limited inspection resources, to
give priority to those sectors determined to be most important in terms
of adversely impacting public health and the environment.
The agency intends to meet the challenges of improving compliance
while reducing burden on states. To ensure compliance across the
country, in these times of tight Federal and state budgets, the agency
can no longer rely solely on traditional inspection and enforcement
approaches to address the many regulated facilities and increasing
numbers of smaller sources contributing to environmental problems.
The EPA is looking at new ways to improve compliance with agency
regulations, including increased monitoring, better targeting of
enforcement, the expansion of electronic reporting, and enhanced
transparency by publishing greater amounts of emissions data to the
Internet. A key element of this approach is using technology to allow
the agency to be more effective and efficient at compliance. This
includes electronic reporting; monitoring pollution releases and
ambient conditions in a more efficient and effective way by using
modern equipment and advanced training for inspectors; continuing to
provide more complete, timely and accurate information to the public,
where it can be used to drive better environmental performance from
regulated facilities and government; and using new approaches to
compliance, such as self-certification programs, and third party
reviews, to create stronger incentives for compliance.
In August 2011, the EPA issued its Final Plan for Periodic
Retrospective Reviews of Existing Regulations.\5\ The plan includes 35
priority reviews which are intended to improve the overall
effectiveness of our regulatory program, including reducing burden and
costs. Several of these reforms have the potential to reduce
permitting, enforcement and compliance burden on states. Below is a
list of priority actions that most directly address state burden:
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\5\ http://www.epa.gov/regdarrt/retrospective.
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Electronic Reporting--Item #1.1.1 in the plan: The EPA intends to
replace key outdated paper reporting requirements with electronic
reporting as soon as practicable. Agency reporting requirements are
still largely paper based for all media programs, which is inefficient
and unnecessarily resource intensive for reporting entities and states,
and ineffective for compliance monitoring and assurance. Among other
things, the EPA intends to conduct a targeted review to convert key
existing paper reporting requirements to electronic reporting, and
develop a strategy for ensuring that new rules incorporate the most
efficient electronic reporting techniques.
National primary drinking water regulations--Long Term 2 Enhanced
Surface Water Treatment (LT2)--2.1.9: The EPA intends to evaluate
effective and practical approaches that may maintain, or provide
greater protection of, the water treated by public water systems and
stored prior to distribution to consumers. Among other things, the EPA
intends to assess and analyze new data/information to evaluate whether
there are new or additional ways to manage risk while assuring
equivalent or improved protection, including with respect to the
covering of ``finished water'' reservoirs (i.e., drinking water that
has already been treated and is intended to be distributed directly to
consumers without further treatment).
Combined Sewer Overflows (CSOs) and integrated planning for wet
weather infrastructure investments--2.1.10: The EPA intends to gather
additional information on how we can better promote Green
Infrastructure (GI), ensure practical and affordable remedies to CSO
violations, and identify additional approaches to ensure that
communities can see noticeable improvements to their water quality and
reduced risks to human health through prioritizing infrastructure
investments.
CAA Title V Permit programs--2.1.14: A Title V permit lists all of
the air quality related rules and requirements that apply to the
particular air pollution source, and specifies how compliance will be
monitored. States are required to give public notice of the draft
permits and some permit revisions, and typically post permits on their
websites. The EPA intends to review the Title V implementation process
to determine whether changes can be made to help all permitting
participants understand the program better, and to help streamline the
process to make more efficient use of industry, public, and government
resources.
Sanitary Sewer Overflow (SSO) and peak flow wet weather
discharges--2.2.3: The EPA intends to gather additional information
about the most effective way to manage wastewater that flows through
municipal sewage treatment plants during heavy rains or other wet
weather periods that cause an increase in the flow of water (these are
collectively known as ``peak flows''). The EPA intends to evaluate
options that are appropriate for addressing SSOs and peak flow wet
weather discharges and determine if a regulatory approach, voluntary
approach, or other approach is the best path forward.
Consumer confidence reports for primary drinking water
regulations--2.2.6: The Consumer Confidence Report is an annual water
quality report that a community water system is required to provide to
its customer. The EPA will consider reviewing the Consumer Confidence
Report Rule to look for opportunities to improve the effectiveness of
communicating drinking water information to the public, while lowering
the burden on water systems.
Reporting requirements under Section 303(d) of the Clean Water Act
(CWA)--2.2.7: The EPA intends to explore ways to reduce the burden on
state governments when reporting on the quality of the nation's water
bodies. The requirement for states to report on the condition of their
waters every 2 years under Section 305(b) is statutory. However, the
requirement for states to identify impaired waters that need a Total
Maximum Daily Load (TMDL) every 2 years under Section 303(d) is
regulatory. States have raised concerns that reporting this information
every 2 years is a significant administrative burden. The EPA intends
to work with the public and states to identify alternative approaches
for reducing associated burden and evaluating the impact of changes
under either or both CWA Sections 303(d) and 305(b).
Water quality standard (WQS) regulations--2.2.10: Since the current
WQS regulation was last revised in 1983, a number of issues have been
raised by states and other stakeholders, or identified by the EPA, that
could benefit from clarification and greater specificity. Among other
things, the EPA intends to provide regulatory flexibility to allow
states and tribes to achieve water quality improvements before
resorting to a use change.
State Implementation Plan (SIP) Process--2.2.11: EPA and states are
working together to review the administrative steps states must follow
when they adopt and submit SIPs. SIPs describe how areas with air
quality problems will attain and maintain the National Ambient Air
Quality Standards. A number of simplifying changes to the SIP
development process have been implemented or are under consideration,
including reducing hard copies, eliminating hearings on matters of no
public interest, minimizing the number of expensive newspaper
advertisements providing public notice, and determining whether and how
the process for making minor plan revisions might be simplified.
Question 2. How much of state budgets go toward ``fixing'' the
problem, i.e., complying with EPA regulations? You mentioned grants to
states. How much does a state or community have to contribute to
receive these grants or other sources of funding to assist with
compliance costs?
Answer. The EPA does not collect detailed data on environmental
spending for compliance in the context of overall state budgets. The
Environmental Council of States (ECOS) collected data on 27 state
budgets and found that an average state in their study met over 80
percent of their state environmental agency's budget with a combination
of Federal Government support and fees, with only about 20 percent of
projected budgets coming from state general revenues. This represents
all activities at the state environmental agency, not just those
related to enforcement of the EPA regulations.\6\
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\6\ Brown, R.S., and Fishman, A. Status of State Environmental
Agency Budgets, 2009-2011, ECOS. http://www.ecos.org/files/
4157_file_August_2010_Green_Report.pdf.
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Questions Submitted by Hon. Robert T. Schilling, a Representative in
Congress from Illinois
Question 1. In your testimony, you note your ``profound respect''
for the contribution that farmers make the whole world over. However,
farmers and producers in the 17th District of Illinois feel threatened
by EPA's over-regulation. How can you claim to respect the
contributions of farmers when it has been suggested that your EPA may
regulate everything from farm dust to milk?
Answer. The EPA is committed to providing an effective opportunity
for input from all stakeholders in shaping environmental protection
strategies including input from the agricultural community. We have
established a Federal advisory committee, The Farm, Ranch, and Rural
Communities Committee, to provide advice to the agency. My office is
directly engaged in facilitating the work of the committee.
Each of our Regional Administrators has an agriculture advisor who
interacts directly with the agriculture community, including state and
local agricultural organizations. The EPA is currently engaged in a
series of intensive listening sessions with agricultural and other
stakeholders to solicit their views on the issues surrounding emissions
of particulate matter. The EPA Office of Pesticide Programs also
conducts an active Federal advisory committee to solicit input from a
wide range of stakeholders on pesticide issues, particularly those that
affect agriculture.
In addition, I will continue to travel to farm communities to talk
directly with farmers and will continue to join Secretary Vilsack in
meeting with commodity groups and farm organizations. The EPA finds
these discussions a valuable opportunity to keep agricultural
stakeholders informed about agency initiatives and to get feedback from
them on these issues. The agency often solicits agriculture community
views on the EPA's efforts to promote environmental quality and
willingly accepts invitations to meet. The EPA will continue to promote
opportunities to engage and inform all stakeholder groups, including
those representing agriculture.
Regarding the regulation of farm dust, I committed in an October
17, 2011 letter that the EPA will send to the Office of Management and
Budget a proposal to keep the PMl0 national ambient air
quality standard as it is, with no change. This existing standard has
been in effect since 1987. I am hopeful that this announcement ends the
myth that the agency has plans to tighten regulation of farm dust.
Similarly, regarding the regulation of milk, on April 12, 2011, the
EPA issued its final rule exempting milk and milk product containers
from the Oil Spill Prevention, Control, and Countermeasure (SPCC) rule.
The final rule was published in the Federal Register on April 18, 2011
and became effective on June 17, 2011.
Question 2. I have very strong concerns about the word
``navigable'' being removed from the Clean Water Act. Will EPA be
developing new guidance that opens up all waters of the United States
to regulation? Why is EPA trying to change policies through a guidance
document?
Answer. The EPA and the U.S. Army Corps of Engineers (Corps) have
drafted guidance that clarifies those waters over which the agencies
will assert jurisdiction consistent with the CWA, implementing
regulations, and Supreme Court interpretations. The draft guidance
cannot and does not alter existing requirement of the law, it merely
explains how the agencies think existing law should be applied in
general, and emphasizes that it may not be applicable in particular
cases. The scope of waters that would be protected under the
interpretations in the draft guidance would remain significantly
narrower than under the agencies' interpretations prior to the Supreme
Court's decisions in SWANCC and Rapanos. All exemptions for agriculture
in the CWA and regulations would be completely unchanged by the draft
guidance.
The EPA and the Corps released the draft guidance for public notice
and comment on May 2, 2011 with a 60 day comment period; this comment
period was later extended until July 31, 2011. The agencies are now
reviewing the comments received and will make decisions regarding any
final guidance after carefully evaluating comments provided by the
public. The agencies also expect to proceed with notice and comment
rulemaking to further clarify the regulatory definition of the term
``waters of the United States.''
Question 3. Atrazine was last re-registered as a herbicide in 2006
after 12 years of review and 6,000 scientific studies reaffirming the
safety of the product. In October of 2010, the World Health
Organization increased its guidelines for atrazine (as it pertains to
drinking water) from 2 parts per billion to 100 parts per billion. What
prompted you to open up the re-registration of atrazine and do you
expect the 6,001st study to produce a different conclusion? I would
like the record to reflect that University of Chicago Economist, Don
Coursey, recently announced that banning atrazine would cost us 21,000
to 48,000 jobs from lost production in corn alone.
Answer. The EPA's current scientific evaluation of atrazine is
based on our commitment to using the best available science and follows
regular open and transparent processes, including our process to obtain
independent, external peer review of important science issues. The
agency will decide whether any steps are necessary to better protect
health and the environment, based on this scientific evaluation. The
EPA reregistered atrazine in 2003, which was the last major regulatory
decision specifically for this herbicide. Given the substantial new
scientific information generated since the 2003 reregistration decision
and improved data on the documented presence of atrazine in both
drinking water sources and other bodies of water collected as a
condition of reregistration, the agency is reviewing the new research
to ensure that our regulatory decisions regarding atrazine are based on
the best available science and protect public health and the
environment. Since the EPA concluded its last evaluation of atrazine in
2003, the agency has evaluated close to 150 newly published studies
investigating a wide array of effects potentially relevant to human
health risk assessment.
The EPA is committed to an open, transparent, and science based
review process that relies on rigorous examination of the relevant
scientific data. As part of this process, to be certain that the best
available science is used to inform its atrazine human health risk
assessment, and to ensure transparency, the agency is seeking advice on
key aspects of the science evaluation from the independent FIFRA
Scientific Advisory Panel (SAP). The EPA presented its plan for the
atrazine reevaluation to the SAP in November 2009, and the agency held
three SAP meetings in 2010 to address new atrazine studies and related
issues. An SAP meeting was held in July 2011 to obtain scientific peer
review of new data that the EPA received from the epidemiological
Agricultural Health Study (AHS) conducted by the National Cancer
Institute at the National Institutes of Health. The EPA recently
received the final report from that meeting of the SAP and plans to
take the recommendations from this SAP report as well as all previous
SAPs on atrazine and human health into account as it updates the state
of the science for the atrazine registration review. Atrazine's
registration review process is scheduled to begin in 2013.
Letter and Questions Submitted by Hon. Thomas J. Rooney, a
Representative in Congress from Florida; Hon. Steve Southerland
II, a Representative in Congress from Florida
March 11, 2011
Hon. Lisa P. Jackson,
Administrator,
United States Environmental Protection Agency,
Washington, D.C.
Dear Administrator Jackson,
During yesterday's House Agriculture Committee hearing to review
the impact of EPA regulation on agriculture, we discussed the recently
finalized EPA mandate regulating numeric nutrient levels in Florida's
rivers, lakes and streams.
Like you, we want clean water for Florida. We appreciate your
stated willingness to work with the Florida Department of Environmental
Protection (DEP) to consider alternatives to the EPA mandate, which
will go into effect in March 2012, in order to achieve the goal of
cleaner water.
Over the last year, we have worked with a bipartisan coalition from
Florida's Congressional Delegation on this matter. We have repeatedly
requested that EPA allow a thorough, third-party review of the science
used in the final EPA mandate. We have also repeatedly asked for a
complete economic analysis to determine the cost the new regulation
would impose on our state. By some accounts, the mandate would impose
approximately $1 billion in direct economic costs, and approximately $2
billion in indirect costs, on Florida each year.
Florida's statewide unemployment remains near 12 percent, and our
businesses and families struggling to stay afloat during difficult
economic times. As Senator Bill Nelson (D-FL) noted in his letter to
you yesterday requesting a delay in the implementation of this
regulation, the EPA should not spend money enforcing the rule until we
have more precise estimates of the cost of compliance. We echo his
request to quote ``. . . to suspend application and enforcement of the
rule, while providing for an independent analysis of the cost of
compliance and continuing to help cities and counties prepare . . .''
We are very grateful to you for committing during yesterday's
hearing to work with DEP toward a solution that can be agreed to by all
parties. We also appreciate your indication that you will be willing to
allow a third-party review of the science and to complete an economic
analysis of EPA's proposed regulation. Thank you very much for meeting
these reasonable requests.
As your agency begins this process, will you please provide us with
the following information:
1. When will EPA begin to produce a complete economic analysis of
the impact of the proposed regulation, and when does EPA expect
that analysis to be complete?
2. What methodology will EPA use in its economic analysis?
3. Which third-party organization will EPA task with conducting a
thorough review of the proposed rule?
4. When will that third-party review commence, and when does EPA
expect it to conclude?
5. How will EPA adjust the proposed regulation to accommodate the
findings of the third-party review and economic analysis?
We look forward to working with your agency; Florida Agriculture
Commissioner Adam Putnam; DEP; other concerned state and Federal
agencies; as well as interested environmental, agriculture and business
groups to develop an agreeable compromise.
Thank you for your appearance before the House Agriculture
Committee yesterday and for your stated commitment to work with the
State of Florida and our Congressional delegation on this important
issue. We appreciate your prompt consideration of these questions. If
you have any questions, please contact Congressman Rooney's office at
(202) 225-5792.
Sincerely,
Hon. Thomas J. Rooney, Hon. Steve Southerland II,
Member of Congress; Member of Congress.
Response from Environmental Protection Agency
April 21, 2011
Hon. Thomas J. Rooney,
Member of Congress,
U.S. House of Representatives,
Washington, D.C.
Dear Congressman Rooney:
Thank you for your letter of March 11, 2011, to Administrator Lisa
P. Jackson, regarding the Environmental Protection Agency's (EPA) final
rule establishing limits on nitrogen and phosphorus for Florida's
lakes, springs and flowing waters (Inland Rule). As the senior policy
manager of EPA's national water program, I appreciate the opportunity
to respond to your letter. In the letter of April 6, 2011, to Senator
Nelson, Administrator Jackson indicated that the Agency has begun the
process of working with the National Academy of Sciences (NAS), a
highly reputable and independent organization, to conduct a third party
review of EPA's cost estimate for the rule in comparison with those of
other stakeholders. EPA's rule, with the exception of the site-specific
alternative criteria provision, will not take effect until March of
2012.
In addition to the concerns raised about the independent cost
review of the Inland Rule, you requested specific information about the
Agency's plans for a third-party review of the science and the economic
analysis for the proposed rule EPA is developing for Florida estuaries,
coastal waters, and southern inland flowing waters.
EPA is presently collecting and evaluating available information
and data to use in developing an economic analysis for the proposed
rule. When it is completed, the analysis will be made available, along
with the proposed rule for Florida estuaries, coastal waters, and
southern inland flowing waters, in November 2011. In developing the
economic analysis, EPA will follow the Agency Guidelines for Preparing
Economic Analyses and the White House Office of Management and Budget's
Circular A-4, guidance to Federal agencies on the development of
regulatory analysis, which define the best practices in conducting
analyses of environmental regulation. As appropriate, any
recommendations resulting from the NAS review of the Inland Rule
economic analysis that are applicable to the analysis for the proposed
coastal-estuary rule will be factored into the analysis for the
proposed rule.
For the proposal itself, EPA has requested the Agency's Science
Advisory Board (SAB) to review and provide input and recommendations on
the underlying scientific methodology and related data that will be
used to develop numeric nutrient criteria for estuarine and coastal
waters, as well as flowing waters in south Florida. The SAB is
comprised of independent nationally recognized experts and is expected
to issue a final report in June 2011. As part of their review, the SAB
has requested and received expert scientific and technical input from
interested parties and organizations in Florida. We plan to use the
findings and recommendations of the SAB report to strengthen the
scientific basis of the numeric nutrient criteria that will be proposed
in November 2011. In addition to this SAB review, we will be conducting
our own internal analytic and data quality review of the information
and analysis supporting the rule. Further, the Agency will request
scientific, technical, and policy review from the Florida public,
interested stakeholders and additional experts as part of the formal
comment period following proposal. Finally, prior to finalizing the
proposal, EPA is planning a series of technical meetings in Florida
early this summer with local scientific experts to request their
perspectives on the approaches being considered for development of the
criteria.
Once the proposal is published and we have received additional
technical and scientific input as part of the comment period, we will
carefully review and consider that input, build upon it where possible,
and provide responses to the comments received. This additional
feedback, analysis and information we receive is an important part of
the Agency's considerations and will help shape the final rule for
Florida estuaries, coastal waters, and southern inland flowing waters.
That final rule is presently scheduled to be issued in August 2012.
Again, thank you for your letter. If you have further questions,
please contact me or your staff may call Denis Borum in EPA's Office of
Congressional and Intergovernmental Relations at [Redacted].
Sincerely,
Nancy K. Stoner,
Acting Assistant Administrator.
Editor's note: An identical letter was sent to Hon. Steve
Southerland II, a Representative in Congress from Florida.