Congressional Hearings
EXAMINING EPA'S AGENDA: PROTECTING THE ENVIRONMENT AND ALLOWING AMERICA'S ECONOMY TO GROW
Congressional Hearings
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Congress: Senate
CHRG-115shrg34874
| AUTHORITYID | CHAMBER | TYPE | COMMITTEENAME |
|---|---|---|---|
| ssev00 | S | S | Committee on Environment and Public Works |
[Senate Hearing 115-471]
[From the U.S. Government Publishing Office]
S. Hrg. 115-471
EXAMINING EPA'S AGENDA: PROTECTING THE ENVIRONMENT AND ALLOWING
AMERICA'S ECONOMY TO GROW
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
AUGUST 1, 2018
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
34-874 PDF WASHINGTON : 2019
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware,
SHELLEY MOORE CAPITO, West Virginia Ranking Member
JOHN BOOZMAN, Arkansas BENJAMIN L. CARDIN, Maryland
ROGER WICKER, Mississippi BERNARD SANDERS, Vermont
DEB FISCHER, Nebraska SHELDON WHITEHOUSE, Rhode Island
JERRY MORAN, Kansas JEFF MERKLEY, Oregon
MIKE ROUNDS, South Dakota KIRSTEN GILLIBRAND, New York
JONI ERNST, Iowa CORY A. BOOKER, New Jersey
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
RICHARD SHELBY, Alabama TAMMY DUCKWORTH, Illinois
CHRIS VAN HOLLEN, Maryland
Richard M. Russell, Majority Staff Director
Mary Frances Repko, Minority Staff Director
C O N T E N T S
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Page
AUGUST 1, 2018
OPENING STATEMENTS
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 3
WITNESS
Wheeler, Hon. Andrew, Acting Administrator, U.S. Environmental
Protection Agency.............................................. 5
Prepared statement........................................... 8
Responses to additional questions from:
Senator Barrasso......................................... 13
Senator Carper........................................... 17
Senator Duckworth........................................ 37
Response to an additional question from Senator Fischer...... 38
Responses to additional questions from:
Senator Gillibrand....................................... 38
Senator Inhofe........................................... 41
Senator Markey........................................... 45
Senator Sanders.......................................... 77
Senator Whitehouse....................................... 82
Response to an additional question from Senator Wicker....... 89
EXAMINING EPA'S AGENDA: PROTECTING THE ENVIRONMENT AND ALLOWING
AMERICA'S ECONOMY TO GROW
----------
WEDNESDAY, AUGUST 1, 2018
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The Committee met, pursuant to notice, at 10:24 a.m. in
room 406, Dirksen Senate Office Building, Hon. John Barrasso
(Chairman of the Committee) presiding.
Present: Senators Barrasso, Carper, Inhofe, Capito,
Boozman, Wicker, Fischer, Moran, Rounds, Ernst, Sullivan,
Cardin, Whitehouse, Merkley, Gillibrand, Booker, Markey,
Duckworth, and Van Hollen.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Before we begin today's hearing, I want
to thank Acting EPA Administrator Andrew Wheeler for making it
a priority to come to testify before the Committee today. I
have been very impressed with how he has started his tenure as
head of the Agency.
As Acting Administrator, Mr. Wheeler has emphasized
transparency, while implementing policies that protect the
environment and allow America's economy to grow.
I would encourage President Trump to nominate Andrew
Wheeler to be Administrator of the Environmental Protection
Agency. Mr. Wheeler is very qualified for that position. He
spent over 25 years working in environmental policy, and in
that time he has served as a career employee at the Agency, as
a staffer here on Capitol Hill, as a consultant in the private
sector, and now in a leadership role of the EPA.
I believe Andrew Wheeler would make an excellent
administrator of the Environmental Protection Agency.
With that, I call this hearing to order.
Today, the Committee will hear testimony on the
Environmental Protection Agency's work to protect the water we
drink, the air we breathe, and the communities we call home. It
is my pleasure to welcome back to the Committee Andrew Wheeler
in his new role as Acting Administrator of the EPA.
First, Mr. Wheeler, as you know, the way that this
Committee works, sometimes there are roll call votes. I
understand there are five roll call votes starting at 11 this
morning, so there will be members coming and going during the
hearing process, so I appreciate your indulgence as we come in
and out.
Mr. Wheeler has served on this Committee in a number of
capacities, most recently as Staff Director. It is only fitting
that our Committee be the first that you testify before in your
new role.
Since President Trump has come to office, his
Administration has made it a priority to pursue policies that
both protect the Nation's environment and allow the economy to
grow. Just last week, we saw how the Administration's pro-
growth and pro-jobs policies are leading to incredible economic
growth. America's economy grew at an impressive 4.1 percent.
Over the past year and a half, the Environmental Protection
Agency has been busy rolling back punishing regulations that
hurt the economy in my home State of Wyoming and communities
across the country.
Under the previous Administration, the Agency created broad
and legally questionable regulation that punished the very
communities EPA claimed to be protecting. The so-called Clean
Power Plan would have cost Wyoming energy workers their jobs
and closed power plants across the country. The Obama
administration openly declared war on American coal and the
workers who produce this critically important resource.
The so-called Clean Power Plan wasn't just bad policy; it
was illegal. Twenty-four States--including Wyoming--filed suit
to block this regulation. The Supreme Court has put the rule on
hold because of the challenges.
Under the leadership of President Trump, the EPA is now
taking steps to undo this damaging rule. The Agency held
listening sessions in several different communities to hear
feedback on how the regulation should be changed or withdrawn.
One of those listening sessions took place in Campbell
County, Wyoming, in the city of Gillette. Wyoming is the
leading coal producing State in the Nation. The vast majority
of the coal from the Nation comes from Campbell County. America
can't afford to leave its energy resources stranded in the
ground.
I am thankful the EPA took the time to listen to all
stakeholders and reexamined the Agency's deeply flawed rule. It
was an important example of Washington listening to the people
of Wyoming.
The Administration has also taken major steps to revise the
Waters of the United States, or the WOTUS, rule. This
outrageous Obama era rule would have put backyard ponds,
puddles, and farm fields under Washington's control. Under that
rule, the EPA told farmers and ranchers their irrigation
ditches were considered navigable waters and would be regulated
by the Federal Government.
The consequences were staggering. The EPA threatened to
fine one private landowner in Wyoming $75,000 a day. The crime
he committed was digging a stock pond in his backyard.
This past January, the EPA delayed the implementation date
of this devastating rule. This delay gives the Agency time to
revise it.
EPA should not punish our ranchers or farmers for managing
their land. It must replace the WOTUS rule with common sense
policy that protects America's waters and respects States and
local authorities.
The Agency has also taken important steps to protect small
refineries in Wyoming and across the country. I applaud the
Trump administration for rejecting efforts to undermine the
ability of small refineries to obtain hardship relief under the
Renewable Fuel Standards, or the RFS.
During the Obama administration, EPA frequently ignored the
law, which requires EPA to grant relief to small refineries
suffering economic hardship under RFS. Since then, two Federal
appeals courts have rebuked the Agency for decisions denying
hardship relief to small refineries.
EPA must not take any action that would limit the ability
of small refineries to obtain hardship relief, restrict when
small refineries can apply for hardship relief, disclose the
confidential business information of small refineries, or
increase the burdens on other refineries. Taking any of these
steps would only compound the problems that this broken program
has created for American refineries and their workers.
I look forward to hearing more about what the Agency is
doing to protect the people of Wyoming and America, to keep our
environment clean, and to support the Nation's growing economy.
Acting Administrator Wheeler, thank you for taking the time
to come testify today. Thank you for making the Senate
Environment and Public Works Committee your first stop on
Capitol Hill.
I would now like to turn to Ranking Member Carper for his
remarks.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thank you very much, Mr. Chairman.
As my colleagues know on this Committee and outside of the
Committee, I have been asking for an oversight hearing with the
EPA Administrator for many months, and I am pleased that our
Committee is holding that hearing today. I have to be honest
with you, I am even more pleased that the person sitting at the
witness table is our Acting Administrator and not his
predecessor.
When Mr. Wheeler took the helm of this Agency, all 25 days
ago--it probably seems like 25 months ago--the Washington Post
noted that we were trading an Administrator who is known for
``sipping organic juice infused with kale'' for an Acting
Administrator who collects Coca-Cola memorabilia.
With that said, Mr. Wheeler, I have something to present to
you today, as we begin this hearing, to add to your collection,
something that my staff found for sale in, of all places, the
Senate cafeteria. I thought you might like to have it. It is a
bottle of Coca-Cola that actually has the word ``Wheeler'' on
it.
[Laughter.]
Senator Carper. I don't know if you have some special deal,
something in your life we don't know about, Andrew. This is
very interesting, but this is your bottle. You will probably
need something stronger before you are finished.
[Laughter.]
Senator Carper. But I am encouraged that there will be a
number of differences between Mr. Wheeler and Mr. Pruitt in the
way that they approach this important leadership role. For
example, I don't expect to hear as much as a peep from Mr.
Wheeler today about used mattress shopping or Chick-fil-A or
fancy moisturizers.
What we do need to hear from Mr. Wheeler today is how he
plans to differentiate himself from Mr. Pruitt across a range
of environmental policies that are far more consequential; how
we repair the significant damage that Mr. Pruitt has done to
the EPA. Will the American public once again be able to trust
the EPA to carry out its mission of protecting public health
and our environment?
Now, I believe in giving credit where credit is due. In the
few weeks that Mr. Wheeler has been the Acting Administrator,
he has published his calendars on a daily basis. He has opened
up EPA events to the media, as well as began to work to ensure
that EPA's beleaguered career staff once again feel valued,
respected, and included. He withdrew Mr. Pruitt's parting act
to stop enforcing air emission standards for some of the
dirtiest heavy duty trucks on the road under the Clean Air Act,
granting one company permission to continue building high
polluting glider trucks for 2 years. Thank you for that.
There is a whole lot to be done. Mr. Wheeler has told me
repeatedly that he shares my goal of striking a deal between
automakers and the State of California and other States on fuel
economy and greenhouse gas tailpipe standards. Unfortunately,
the Administration's proposal could not be further from the
win-win outcome that many of us on this Committee and outside
this Committee believe is within reach.
Instead of providing near term flexibility and
predictability for the auto industry in exchange for more
rigorous standards and clean vehicle incentives going forward,
the Trump administration is proposing to free standards for 7
straight model years. We can do better than that, and we need
to.
The Administration would remove all credits for air
conditioning and other improvements and argue that California
should be preempted. Such a proposal is not the win-win outcome
that stakeholders are asking for, one that keeps the American
auto industry competitive, creates more good paying jobs right
here at home, and protects our environment well into the
future.
Instead, this Administration has, once again, ignored
common sense, turned its back on a solution that would allow
for States like California to enforce its own clean standards,
and decided to listen to the most extreme voices as it pushes
through a plan no one is interested in.
Mr. Pruitt's EPA also had a warped sense of cooperative
federalism, especially when it came to protecting downwind
States from harmful air pollution. Under Mr. Pruitt, EPA failed
to meet the deadlines to designate who was living in unhealthy
ozone areas and delayed emission reductions critical to
downwind States.
At the same time, Mr. Pruitt's EPA rejected requests from
downwind States to require upwind polluters to install or
operate existing pollution controls, tried to cut State air
program funding, and weakened enforcement efforts. All of these
actions were a disaster for the people, like those in my own
home State of Delaware, and States like Maryland, New Jersey,
New York, Rhode Island, Massachusetts, and others on the East
Coast who live at the end of what we call America's tailpipe.
Instead of prioritizing and protecting the polluters, I
hope Mr. Wheeler will prioritize and protect the people who are
being harmed from those emissions. Under Mr. Pruitt, EPA has
also acted to roll back clean water protections by, I think,
dishonestly inflating the costs of those rules to industry,
while minimizing the health and environmental benefits to the
public.
Mr. Wheeler needs to describe how he plans to ensure that
clean water and other rules are based on credible data, how
they comply with the law.
Mr. Pruitt misguidedly banned any scientist who had
received EPA grant funding from serving on EPA's scientific
advisory committees. He proposed to have EPA ignore and not
consider some of the best scientific studies in the world. It
is my sincere hope that Mr. Wheeler will share with us his
plans for ending EPA's war on science.
Disappointedly, too, there is probably no aspect of EPA's
implementation of the new Toxic Substances Control Act that
will not be litigated. Mr. Pruitt's EPA chose to blatantly
disregard the clear and unambiguous law that we largely wrote
right here in this Committee and Congress passed with near
unanimous support. This kind of blatant disregard for the rule
of law needs to end, and it needs to end here.
Mr. Wheeler needs to describe how he plans to stop wasting
taxpayer funds and EPA's lawyers' time defending proposals that
are clearly illegal, and restore the Agency to one that
respects the rule of law and is guided by science.
The day after Mr. Pruitt resigned, I sent Mr. Wheeler a
letter. I told him, ``You have been granted an enormous
challenge and responsibility, but an even greater opportunity.
The damage that Scott Pruitt has done to this Agency will not
be easily undone. While you and I have not always agreed--and
will not always agree--on every environmental policy matter, it
is my hope and expectation that you will carefully consider the
lessons of the past as you prepare to chart the Agency's
future.'' We look forward to a continued dialog and to today's
hearing.
Welcome.
Senator Barrasso. Thank you so much, Senator Carper.
We will now hear from our witness in a few seconds, and
that is Hon. Andrew Wheeler, the Acting Administrator of the
U.S. Environmental Protection Agency.
I want to remind Mr. Wheeler that your full written
testimony will be made part of the official hearing record, so
please keep your comments and your statement to about 5 minutes
so we will have time for questions from the members of the
Committee.
I look forward to hearing your testimony.
Mr. Wheeler.
STATEMENT OF HON. ANDREW WHEELER, ACTING ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Wheeler. Good morning, Mr. Chairman, Ranking Member
Carper, and members of the Committee.
When Chairman Barrasso called me to ask me if this would be
my first hearing, I jumped at the opportunity because I
couldn't think of another Committee that I would want to
testify in front of first.
When President Trump appointed me Acting Administrator, he
asked me to focus on three things: clean up the air, clean up
the water, and provide regulatory relief to help the economy
thrive and create more jobs for American workers. I believe we
can accomplish all three at the same time. In fact, we have
already made progress on all three fronts in just the past few
weeks. We haven't slowed down, and we haven't missed a step.
Yesterday, we released EPA's annual report on air quality,
and we have great news to share. From 1970 to 2017 the combined
emissions of the six key pollutants regulated under the NAAQS
dropped by 73 percent, while the U.S. economy grew more than
260 percent. This is a remarkable achievement that should be
recognized and celebrated. The U.S. leads the world in terms of
clean air and air quality progress.
On my first day as Acting Administrator we sent to OMB for
interagency review a proposed rule to set State guidelines for
greenhouse gas emissions from power plants.
We recently finalized the first set of revisions to the
2015 regulations for the disposal of coal ash. These actions
will provide States and utilities much needed flexibility in
the management of their waste.
Last week, we issued a final rule that codifies the animal
waste reporting exemptions which were signed into law in the
Fair Agricultural Reporting Method, the FARM Act, Senator
Fischer's legislation. We also approved pathways for biodiesel
derived from sorghum. This action lays the groundwork for more
homegrown fuels under the Renewable Fuels Standard and adds
diversity to the Nation's biofuels mix.
Finally, we recently commemorated the 1-year anniversary of
the Superfund Task Force Report and highlighted the
extraordinary progress we have made cleaning up sites and
returning them for productive use.
Just this week, we reached a framework to address the
outstanding issues of the Anaconda Smelter site in Montana.
This framework will allow us to meet our goal of delisting the
site by 2025, and this site has been on the list for decades.
As you can see, we are continuing the President's agenda
posthaste. The combination of regulatory relief and the
President's historic tax cuts continues to spur economic growth
across the country, particularly in communities that were
previously--and wrongly--ignored or forgotten.
One way we can fulfill the President's agenda is providing
more certainty to the American people. A lack of certainty from
EPA hinders the environmental protections and creates paralysis
in the marketplace. We will prioritize certainty in three
areas: certainty to the States and local governments, including
Tribes; certainty within EPA programs, such as permitting and
enforcement actions; and certainty in risk communication.
First, we need to provide more certainty to the States, who
are the primary implementers and enforcers of many of our
environmental laws and programs. We will work closely with the
States to ensure our mutual responsibilities under the law are
fulfilled.
Second, we need to provide more certainty within EPA
programs. For example, we need to improve our permitting
processes. Our goal is to make all permit decisions, up or
down, in 6 months. I am not suggesting that we approve all
permits within a set amount of time.
On a similar front, we must provide more certainty in our
enforcement actions. When EPA's enforcement actions linger for
years, it hurts the competitiveness of American businesses.
Let me be clear, I am not advocating for letting people off
the hook or reducing fines. Rather, I am advocating for making
enforcement decisions in a timely and consistent manner.
Third, and finally, we need to provide more certainty in
risk communication. As an Agency, we must be able to speak with
one voice and clearly explain to the American people the
environmental and health risks that they face in their daily
lives. We have fallen short in this area from our response to
9/11 to recent events surrounding the Gold King Mine in
Colorado, and most recently in Flint, Michigan. We owe it to
the American public to ensure that this does not happen again.
We are also prioritizing our efforts to assist State and
local governments in preparing for and responding to natural
disasters and extreme weather events. Readiness is all, to
quote my favorite author, Shakespeare.
There is no doubt in my mind that we will make improvements
in all of these areas. I believe in this Agency; I believe in
its mission, and I believe in its personnel.
I would like to take a minute to talk about my fellow EPA
employees. I know how dedicated and passionate they are, and it
is a privilege to work alongside them.
Senator Barrasso. If I could have the witness suspend,
please, and ask the officers to remove the disturbance.
[Pause.]
Senator Barrasso. Apologize for the delay. Thank you.
Mr. Wheeler. Quite all right.
I would like to take a minute to talk about my fellow EPA
employees. I know how dedicated and passionate they are, and it
is a privilege to work alongside them. I have told them that my
instinct will be to defend their work, and I will seek the
facts from them before drawing conclusions.
We exist to serve the public. As such, we should conduct
our business in a manner fully deserving of the public's trust
and confidence. Earlier this week, I issued my own fishbowl
memo which lays out the principles and protocols that will
guide our efforts to be transparent, open, and accountable to
the American public. Our success as an Agency depends on it.
Thank you, and I look forward to answering your questions.
[The prepared statement of Mr. Wheeler follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Well, thank you very much for your
testimony.
We will start with some questioning, if I may, and I wanted
to start by mentioning what I see happening right now in the
State of Washington.
The State of Washington is abusing Section 401 of the Clean
Water Act in order to block the development of the coal export
terminal in that State. The terminal would ship coal from
Wyoming, Montana, Utah, and Colorado to markets in Asia. The
State of Washington has cited reasons for objecting to the
terminal that had nothing to do with water quality, yet they
are using Section 401 of the Clean Water Act.
I introduced a bill this week to address this problem. We
can't allow States to block the export of American energy.
Will you commit to working with me to identify both
legislative and regulatory solutions to stop these abuses?
Mr. Wheeler. Yes, Senator, I will.
Senator Barrasso. Recently, there have been some stories in
the press discussing some of your recusals from former clients
that you took in terms of meetings you have taken as Deputy
Administrator, so I would like to give you the opportunity to
address the stories, and if necessary, clarify the record.
Visit with us about that, and maybe tell the Committee how you
are going to honor your recusals from former clients.
Mr. Wheeler. Absolutely. I have committed, under both the
Trump ethics pledge and the ethics regulations, to follow all
the guidelines. I have worked with our career ethics official
at the EPA. I met with her for the first time before I was
actually nominated to go over what the requirements would be,
and I have not met with any of my clients that I represented
for the 2 years prior to joining the Agency.
There is one article that mentioned that there was a former
client that was in a couple of meetings that I attended. I want
to clarify that those weren't meetings; they were actually
speeches. I gave speeches at two trade associations, and the
client was in the audience in those speeches. And according to
ethics, as long as there are more than five people, and there
were five times as many people as that in the audience, and I
can't control the people that attend a public speech.
Senator Barrasso. Thank you.
The Clean Air Act requires that EPA grant relief to small
refineries which suffer disproportionate economic hardship
under the Renewable Fuel Standards, the RFS. The law explicitly
states that a small refinery may petition the EPA for hardship
relief ``at any time.''
Do you agree that EPA doesn't have the authority to limit
when small refineries can apply for hardship relief?
Mr. Wheeler. Absolutely. We cannot limit when they apply
for the relief, no.
Senator Barrasso. The law further states the EPA must act
within 90 days upon receiving a petition from a small refinery.
Do you agree the EPA doesn't have the authority to delay
decisions on a small refinery's petition beyond 90 days?
Mr. Wheeler. I am not sure, to the extent that we have met
the 90-day requirements, but we certainly try to meet all the
requirements under all of our statutes.
Senator Barrasso. In December 2017 I sent Administrator
Pruitt a letter encouraging the EPA to withdraw its proposed
rule on in situ uranium recovery, ISR. The Obama administration
proposed the rule on January 19th, 2017, the final day before
President Obama left office. Since then, the Nuclear Regulatory
Commission, our Nation's principal nuclear regulator, has
stated that there is ``no health or safety jurisdiction for
EPA's rulemaking.''
Uranium production is vital to our country's national
security, our energy security. Wyoming produces more uranium
than any other State. When can we expect the EPA to scrap this
unnecessary regulation that came out kind of a midnight
regulation, came out by the Obama administration on the final
day of that 8-year administration?
Mr. Wheeler. Senator, I have not had the opportunity to be
briefed on that in the last 4 weeks, but I know that the
Nuclear Regulatory Commission also has concerns about that, and
we will try to work forward on that expeditiously.
Senator Barrasso. During the first year of the Trump
administration, it is my understanding that EPA finalized 22
deregulatory actions. According to your Agency, these actions
could save over $1 billion in regulatory costs to Americans.
Just last July it was announced that the American economy grew
4.1 percent. This continues the trend of strong economic growth
under the Trump administration.
In your opinion, is the Administration's approach to
environmental deregulation at the EPA protecting the
environment, while also helping our economy? Essentially can we
have both a strong economy and a healthy environment at the
same time?
Mr. Wheeler. Yes, we can, and I think the data shows that.
Thank you.
Senator Barrasso. Senator Carper.
Senator Carper. Again, welcome today, and thank you for----
Mr. Wheeler. Thank you, and thank you for the Coke. I need
to clear that through our ethics in-house, but I do appreciate
that. Thank you.
Senator Carper. If it doesn't clear, I am sure you will
have some takers here. I would be happy to bring out the ice.
Mr. Wheeler. I would be happy to buy it from you.
Senator Carper. Mr. Wheeler, you have told me more than
once that you share my goal, I think our goal, of striking a
deal between automakers in the State of California and other
States on fuel economy and greenhouse gas tailpipe standards. A
win-win is what we are looking for.
The auto industry and the State of California also
repeatedly told me that they want a deal. Unfortunately, the
Administration's proposal that is being released this week is
reported to freeze standards at model year 2020 levels,
eliminate technology incentives, and preempt California and the
12 States that have followed California's lead, which I believe
would be a lose-lose-lose situation; a loss for an industry
that needs certainty and predictability, a loss for consumers,
and a loss for our environment.
The largest source of air pollution in our country today is
not coal fired utilities, it is not manufacturing, it is not
cement plants; it is mobile sources. That is No. 1. So, I have
a couple of questions to pursue in this regard.
First, if you were presented with a proposal that both the
auto industry and the State of California, and 12 States
aligned with them, could support, would you welcome such a
compromise?
Mr. Wheeler. I would certainly welcome such a compromise.
The proposal that is coming out this week, first, it is a
proposal, and we are taking a range of comments from a flatline
approach all the way to the numbers that President Obama's
proposal had, and a number of steps in between. So, we are
taking comments on all of those levels, and we would welcome
any comments or proposals from any of the impacted groups,
absolutely.
Senator Carper. To follow up on that, could we assume on
this Committee that if there was such a deal, essentially a 50-
State deal, there would be no effort to preempt California?
Mr. Wheeler. I mean, it is my goal, it is the
Administration's goal to come up with a 50-State solution, and
we want to have a 50-State solution that does not necessitate
preempting California. However, there are a number of goals in
the proposal, and there are important goals on highway safety,
so we would have to make sure that those are met. The proposal
will save 1,000 lives per year, which I think is very
important, and make sure that we maintain that in any final
regulation that goes forward.
Senator Carper. I do a lot of customer calls, and I know my
colleagues do as well, businesses large and small. Delaware
used to build more cars, trucks, and vans per capita than any
State in America. We had a GM plant, Chrysler plant that
employed 8,000 people, and those two plants, lost them both at
the bottom of the great recession.
I still do customer calls with the auto industry, and I ask
them three questions: How are you doing? How are we doing? And
what can we do to help? Unanimously, they say, with respect to
this, what you can do is give us predictability and certainty.
They say we don't want to have to build one Chevrolet Malibu
for California and 12 other States, and then a different model
for the other 37 States.
They say we want to have more near term flexibility on
these standards, but we are happy to have more rigorous
standard going forward. We don't want to be in court for the
next 5 or 6 or 7 years with California and other States. Give
us the certainty and predictability, and enable us to really
compete with the rest of the world when we get to 2025 and
2030.
I just ask that we keep that in mind.
Mr. Wheeler. Yes, Senator.
Senator Carper. Second, cross-State pollution. Delaware and
other States have made great strides in cleaning up our State's
ozone pollution, yet northern Delaware--where my family and I
live, where two-thirds of our citizens live--still does not
meet ozone health standards due to emissions not from within
our State, but from other States' dirty cars and power plants
drifting into our State.
Ninety-four percent of our air pollution in Delaware comes
from sources outside of us, largely from the west and the
north. In 2016 Delaware filed four clean air petitions with
EPA--four--showing that four fossil fuel plants, three in
Pennsylvania and one in West Virginia, are contributing to our
unhealthy ozone days.
The cleanup solutions are easy. The three facilities in
Pennsylvania have clean air pollution technology installed.
They don't use it. They don't use it. The coal facility over in
West Virginia, my native West Virginia, they could go to
natural gas and help not only their air quality, but ours as
well. We thought Delaware's case was a slam dunk, and I was
shocked when EPA proposed to reject these petitions.
Just a couple yes or no questions, if I could.
Before making a final decision, would you commit to
reviewing Delaware's rebuttal to EPA's proposed rejections,
which were sent to you July 23rd, 2018? I am asking for you
just to commit to review our rebuttal.
Mr. Wheeler. I would be happy to review that, Senator, yes.
Senator Carper. Thank you.
Since EPA has refused to have a hearing on this issue in
Delaware, would you commit to meet personally with State of
Delaware officials before making a final decision on this
matter at the place and time of your convenience?
Mr. Wheeler. I would be happy to talk to the officials in
Delaware, yes.
Senator Carper. Thank you.
I don't usually ask yes or no questions, so bear with me,
please.
When making final decisions on any Section 126 petition
from some of the other States on the end of America's tailpipe,
our neighboring States, will you follow the spirit and letter
of the law, which requires EPA to prioritize the residents of
the State which receive the pollution?
Mr. Wheeler. Yes, Senator, we will follow the letter and
spirit of the law. I would add, also, that on the cross-border
side, we are working with States to develop new technical tools
to help them facilitate the Good Neighbor State plans. On the
ozone, at this point, we are showing that all the areas, except
for a few areas that have been longstanding in non-attainment,
should be in attainment by the early 2020s.
Senator Carper. All right.
Mr. Wheeler. We are very positive about the data that is
coming in on that.
Senator Carper. I would just say, Mr. Chairman, if I could,
in closing, I think everybody on this Committee--I know the
folks here pretty well, and we are Golden Rule people; we treat
other people the way we want to be treated, and the idea that
folks in States to our west put up pollution, keep their air
clean, their health care costs low, and we end up with dirty
air and higher healthcare costs, it is just not fair. It is not
the way to treat our neighbors.
Thank you.
Mr. Wheeler. Thank you, Senator.
Senator Barrasso. Thank you, Senator Carper.
Before turning to Senator Inhofe, Andrew, I would say that
we are going to start voting shortly, and I will go vote and
turn the chair over to Senator Inhofe at the time, who will be
chairing the Committee until I return.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
First of all, I liked your opening statement. It is
certainty that we want and that we deserve, which we have not
been historically given.
I want to elaborate a little bit with a question asked a
little bit differently than the comment by the Ranking Member.
Last year, the EPA, along with the Department of Energy,
granted 33 of 34 hardship exemptions to refineries due to high
RIN costs. The EPA was sued on one petition it denied and ended
up losing in court. Opponents of these exemptions say that the
refineries are not under a hardship, even though they are
actually paying more than their payroll to comply with these
mandates that are out there.
If you look at the fact that the EPA has now lost twice in
court for not approving exemptions, the EPA is simply applying
the law when it does grant them and they should be approving
more of them.
How does the EPA thread this needle?
Mr. Wheeler. It is a very difficult needle to thread. We
are following the statute, and we now have had two court cases
that have ruled against the Agency on the granting of the
exemptions. We also have appropriations language to remind us
to grant the small refinery exemptions.
One area we are trying to do is to provide more
transparency around the decisions that we are making on the
small refinery exemptions, and I think that will help clear up
a lot of the concerns around the issue.
Senator Inhofe. Yes, I think it will.
Now, President Trump and you have committed to returning
EPA to cooperative federalism, which I applaud. Unfortunately,
some have confused that principle with coercive federalism,
where one State dictates their standard to all others. When it
comes to the auto industry--and we talked about this a minute
ago--the last Administration handed over car emission standards
to California, but other States didn't get to weigh in. Because
of this, Oklahomans, my State of Oklahoma, are paying more for
their SUVs and trucks to subsidize electric cars so California
drivers can afford them, which I find personally a little
offensive.
I applaud the EPA and NHTSA for revisiting the mid-term
review done at the last minute by the Obama administration.
Now, EPA doesn't have any statutory direction for its auto
regulations, but NHTSA does. Do you think EPA and NHTSA should
harmonize their regulations so technological feasibility and
consumer costs are considered?
Mr. Wheeler. Yes, Senator, I do, and that is what we have
done.
Senator Inhofe. All right.
Last, I had the honor of attending your opening statement.
It was a very good statement. You had all the employees, I
don't know how many hundred were there, but you got a very fine
response from them. In your opening remarks to the EPA
employees, you mentioned the fact that the United States is the
gold standard worldwide for the environmental protection and
that pollution regulated under NAAQS has dropped 73 percent.
You mentioned this again in your opening statement. Nobody ever
talks about the success that we have, that we are riding on.
Meanwhile, our economy has expanded three times over, and
yet the pollutions regulated dropped some 73 percent.
The problem that we had in the 8 years of the Obama
administration was the use of regulations to punish industries
and States to reshape our economy with little to no benefit for
the environment.
Can you elaborate on how you have both a clean environment
without handcuffing our economy? How do you plan to do that?
Mr. Wheeler. Absolutely. I think that goes to my comments
on certainty. I think if we provide more certainty not just to
the regulated community, but to the American people, so that
everyone understands the decisions that we are making and why
we are making them, we will continue to improve the environment
and provide that certainty that businesses are looking for.
Senator Inhofe. That is good.
Aren't there instances where regulations such as the New
Source Review can actually get in the way of reducing
pollution?
Mr. Wheeler. It can. It can be a disincentive for
installing cleaner technologies. And we are trying to stop
that.
Senator Inhofe. Good. Good. Thank you very much. You did a
great job.
Mr. Wheeler. Thank you, Senator.
Senator Barrasso. Thank you, Senator Inhofe.
Senator Cardin.
Senator Cardin. Mr. Wheeler, welcome. It is a pleasure to
have you here.
Mr. Wheeler. Thank you, Senator.
Senator Cardin. I noticed your comments about the
improvements in air over the last 40, 50 years. I might tell
you we have seen remarkable improvement in the Chesapeake Bay
during that period of time, and I say that because the
Chesapeake Bay also has been a program that was developed with
State flexibility. It is State blueprints that are agreed to by
the six surrounding States of the Chesapeake Bay Watershed, as
well as the District of Columbia, and it has had the strong
support from Congress, including this Committee recently, as
well as from the Environmental Protection Agency.
My first question, recognizing the importance of the
Chesapeake Bay not just to the surrounding States, but to our
region, it is the largest estuary in our hemisphere, will you
continue the traditional Environmental Protection Agency
support for a strong Federal role in coordinating the work that
is done on the Chesapeake Bay?
Mr. Wheeler. Absolutely. In my first week as the Deputy
Administrator, I attended the Chesapeake Bay Commission, and
next week I will be attending the Chesapeake Bay Leadership
Council in Baltimore. It is a high priority for us. I actually
live in the Chesapeake Resource Protection Area, and it is a
high priority for the Agency.
Senator Cardin. I don't consider that to be a conflict, so
you can do whatever you want to to protect our Bay. I would
just ask you also to work closely with the members of this
Committee and Congress that have a deep interest in the
Chesapeake Bay.
Mr. Wheeler. Yes, I will.
Senator Cardin. Thank you.
The EPA Inspector General recently released a report
analyzing the Federal Government's role in the lead
contamination crisis in Flint, Michigan, with the hopes of
avoiding another crisis in another city.
Will you accept and implement the recommendations of the
Inspector General?
Mr. Wheeler. I know that our staff has reviewed the
recommendations and we are in the process of planning an
implementation program to make sure that we implement them. I
haven't been fully briefed on how we are going to implement
them yet, but it is a high priority for the Agency, and we are
moving forward to make sure that something like Flint,
Michigan, does not happen again.
Senator Cardin. I guess that is the strongest commitment I
am going to get here today, but I would just urge you, the
Inspector General gives an independent view.
Mr. Wheeler. Yes.
Senator Cardin. It is important that their report receives
the respect from the Agency.
Mr. Wheeler. It is.
Senator Cardin. Thank you.
I also appreciate what you said about the work force, the
people that work at the EPA. The first question I have, I
recognize the struggle that every cabinet person has with OMB,
but are you going to be an advocate for the funds necessary for
the EPA in order to be able to carry out its work and be there
fighting for the resources you need to carry out your mission?
Mr. Wheeler. Yes, I am an advocate for the resources that
we need, and we will fully implement the appropriations that
Congress gives us.
Senator Cardin. That was the second question I was going to
ask; you already anticipated it. The former staffer here
understands the questions that are coming; that is good.
Let me just follow up on that. You said that you wanted to
respect the recommendations given to you by your scientists and
your professional staff. I assume that also means the Science
Advisory Board. That is a resource that you have, and it has
been called into challenge in the last 2 years.
Are you committed to allowing the experts to give you
unfettered information for you to make decisions that need to
be made? Will you also commit to allow them to participate in
policy conferences so that you can have the interaction which
we have seen over the long period of time with EPA?
Mr. Wheeler. Yes, Senator, I would commit to both of those.
Senator Cardin. Thank you.
Last, let me just ask you about your vision as to what you
need in support in order to carry out your mission. The EPA is
responsible for clean air, clean water, and for our clean
environment. You have a new toxic chemical law that has been
working on. There is concern that chemicals are not being
treated as intended by Congress.
Do you pledge to work with us and outside interest groups
to make sure that we do get an independent evaluation of issues
such as toxic chemicals to make sure that they are given the
independent evaluation as to whether they need to be regulated?
Mr. Wheeler. Yes, Senator, I do. I started my career in the
toxics chemical program at EPA in 1991. I worked there for 4
years, and I am excited to be part of the implementation of the
new Lautenberg Chemical law, and we want to make sure that we
are implementing it in the same manner in which Congress
intended it when they passed it.
Senator Cardin. And if we have information, you will
consider the information we send to you?
Mr. Wheeler. Yes, Senator, I will.
Senator Cardin. Thank you.
Senator Barrasso. Senator Boozman.
Senator Boozman. Thank you, Mr. Chairman.
Thank you for being here today to testify.
Senator Inhofe mentioned earlier the importance of
certainty, and one of the things I would like to ask you about
is the fact that on June 27th, then EPA Administrator Pruitt
issued a memo reorienting the Agency's approach to when and how
it would veto Clean Water Act Section 404 permits issued by the
U.S. Army Corps of Engineers.
Recognizing the Agency has not acted on the authority
often--only 13 times since 1980--the threat remains that the
EPA could stop an infrastructure project that has already gone
through a lengthy and expensive permitting process and already
received approval to proceed. Threat adds uncertainty to
permitting and jeopardizes support for infrastructure projects.
Will EPA, under your direction, proceed with the rulemaking
to align the 404(c) process with the June 27th memo?
Mr. Wheeler. We are looking into that, and as we move
forward, I think it is very important to provide that
certainty, and I agree that, even though it has been rarely
used by the Agency, it has created a lot of uncertainty even
when it wasn't used.
Senator Boozman. Good. We would appreciate your looking at
that.
As Acting Administrator, you will have a highly influential
role in advising the President on how to implement or modify
the regulatory footprint of environmental policy in our Nation.
How do you anticipate your past experiences will help in
improving the way the EPA engages with all stakeholders?
Mr. Wheeler. First of all, having started my career at the
Agency as a career employee, I think that has helped me a lot
in understanding the processes and the people of the Agency.
But I think my 14 years working here at this Committee and
meeting with a wide variety of stakeholders from a number of
States all across the country, international as well, has given
me appreciation for the different conflicting policy areas that
we have at the Agency and that we need to make sure that we are
talking to all interested groups as we move forward with any
regulation.
Senator Boozman. Very good.
A criticism of EPA during the previous Administration was
the Agency's disconnect with rural America. Rural America is
having a difficult time right now. Many hardworking Americans
in rural States felt they did not have a voice, and their
opinions did not matter.
What have you done, what do you feel, in other words, what
is your planning in the future to facilitate a stronger level
of trust between EPA and rural America?
Mr. Wheeler. I think it is very important to make sure that
all of our regulatory actions, our guidance documents,
everything takes into account the impact on rural America. The
announcement that we made last week on the sorghum pathway for
the renewable fuels, that is going to help a lot of rural
communities across the upper Midwest. I think making sure that
we take actions like that to help grow the economy in rural
areas is very important.
Senator Boozman. Very good.
EPA, during the Obama administration, encroached into other
agencies' jurisdictions, resulting in EPA making decisions on
issues where they lack the expertise.
Can we count on you to work with other agencies and take
their expertise into careful consideration when developing and
implementing rules and regulations?
Mr. Wheeler. Yes, we will. We are taking those into
consideration, Senator.
Senator Boozman. It seems to me that our air permitting
system is in desperate need of updating. The current system we
have in place sometimes overstates the air quality impacts of
new projects, which can lead to delays or canceled investments
and lost opportunities.
What does the Agency plan to do to fix the broken
permitting and New Source Review programs?
Mr. Wheeler. We have implemented several guidance
documents, new guidance to the States and to the community on
New Source Review, and we are looking at those now to see which
ones of those we need to move forward on regulatory actions to
make sure that we provide that certainty.
As Senator Inhofe said on New Source Review, oftentimes it
can be counterproductive on cleaning up the environment when it
is a disincentive for installing cleaner, more efficient
technologies.
Senator Boozman. Very good.
Companies have made billions of dollars in investments
complying with the 2013 Boiler Maximum Achievable Control
Technology rule. While the rule was expensive, it was generally
achievable. Unfortunately, regulatory uncertainty remains,
given recent court decisions sending a couple of issues back to
EPA to address.
When will EPA complete this rulemaking so facilities can
know they have met all of their boiler obligations?
Mr. Wheeler. Senator, I am not positive on the timeline for
that, but I would be happy to look into that and get back to
your office.
Senator Boozman. Thank you very much.
Thank you, Mr. Chairman.
Mr. Wheeler. Thank you, Senator.
Senator Inhofe [presiding]. Thank you, Senator Boozman.
Senator Booker.
Senator Booker. Thank you very much, Mr. Chairman.
Thank you very much, sir. It is good to see you here.
Mr. Wheeler, I want to focus on EPA's TSCA implementation,
if I can, and I would like to start by saying that I am pleased
with the strategic plan that the EPA released to reduce animal
testing. I was really grateful for that, and I hope that this
is an issue that we can work together on moving forward.
But overall, I am concerned about how the EPA is choosing
to implement the changes to TSCA that my colleagues and I on
this Committee--in a bipartisan way--worked so hard on last
Congress. I know you are probably aware of that.
One area I am concerned about is EPA's failure to consider
all the sources of exposure that people have to the toxic
chemicals that EPA has started to review. In our amended TSCA
law, EPA was told by Congress to examine the safety of all
known, intended, and reasonably foreseeable uses of a chemical,
and the combined impacts of all exposures to a particular
chemical, when making their determination about whether a
chemical presents an unreasonable risk of harm.
But EPA's problem formulations have dramatically narrowed
the conditions that the Agency will use to evaluate the safety
of the first 10 chemicals under TSCA. EPA is now indicating
that it will ignore known exposures to those first 10 toxic
chemicals, including for the known carcinogen TCE. EPA has
warned since 2011 that TCE causes cancer, and in 2017 proposed
to ban specific uses of TCE. But under Scott Pruitt's
leadership, EPA proposed to indefinitely postpone the ban on
this deadly chemical.
In New Jersey, we have many communities that have been
harmed by TCE, but there is one community outside of New
Jersey, in Franklin, Indiana, that I want to focus on. In
Franklin, they discovered that the community has high levels of
TCE in their groundwater and in the air outside many homes, and
the children in Franklin are getting cancer at inordinately
high rates.
Carrie and Matt Rhinehart, who are in the audience right
now, their daughter Emma Grace died 4 years ago from brain
cancer when she was 13 years old. Stacy and Matt Davidson, who
are also here, their son Zane has leukemia, but thank God, it
is currently in recession.
High level exposure of TCE makes these families partly
vulnerably subpopulation under the TSCA law, but EPA is now
saying that it will ignore exposures that come from land, air,
and water, meaning it will ignore the types of TCE exposures
that these and other families have so painfully endured in
deciding whether or not TCE is safe.
The scaling back of our bipartisan chemical safety law, one
of the prouder moments I have had as a Senator, was set in
motion by Scott Pruitt, and I am really hopeful that you are
going to reverse course on what I think is a bad decision, and
the families here agree with me.
So, Mr. Wheeler, as part of the evaluation process, would
you commit to comprehensively reviewing the risks of chemicals
like TCE by including known releases of chemicals into our air,
water, and land, releases that threaten communities across the
country?
Mr. Wheeler. Senator, I am trying to keep track of all the
parts of your question. On the last, let me start with that. It
is tragic for any chemical to cause the death of a child, and
my heart goes out to those families impacted by that.
Absolutely, we need to be moving forward to do something on TCE
and the other chemicals, which is why we included TCE on the
list of the first 10 chemicals for review.
Senator Booker. Well, I guess a yes or no is what I was
asking. Would you commit to comprehensively reviewing the risks
of chemicals by including known releases into our air, land,
and water, released like TCE?
Mr. Wheeler. It is my understanding that we are looking at
those pathways as we look at the chemicals on the list. I will
need to double-check with our chemical office on that, but it
is my understanding it is part of the 10 chemicals, as TCE
being one of the first 10 chemicals that we are examining, that
we are examining the different pathways.
Senator Booker. What I worry about, it was Scott Pruitt's
decision to move forward within 30 days to finalize the ban on
specific uses of TCE. I am worried that that is something that
is moving forward. We need to reverse that decision. Do you
understand?
Mr. Wheeler. I think I understand what you are saying, but
let me check on the status of that.
Senator Booker. And then let me very quickly, methylene
chloride. In January 2017 EPA proposed banning all consumer and
commercial uses of methylene chloride in paint strippers. The
ban, though, was never finalized.
In May your predecessor agreed to meet with mothers whose
sons died suddenly from using paint strippers containing this
toxic chemical, and a few days later, Scott Pruitt, today, we
are going to finalize the proposed rule and send it out
shortly, but since then we have seen nothing. It has been
several months, and the mothers who were hoping to prevent
other families from experiencing the loss of loved ones, people
are really disheartened.
So, my simple question, and I conclude with it, is will you
commit to sending the proposed ban of consumer chemicals uses
to OMB for the final review in the next 2 weeks?
Mr. Wheeler. Well, we are continuing to work with OMB and
the other agencies and departments that have equity on that
chemical issue, and we are trying to move that forward as
quickly as we can. I can't commit to a specific timeframe, but
we are trying to move that forward.
Senator Booker. All right. There are a lot of families from
the paint stripping chemicals sitting behind you right now that
are really relying on you to save lives. There are
extraordinary injustices going on with this kind of inaction by
your Agency, and I hope that you will move with all deliberate
speed to address these concerns.
Mr. Wheeler. Thank you, Senator.
Senator Booker. Thank you.
Senator Inhofe. Thank you, Senator Booker.
Senator Ernst.
Senator Ernst. Thank you, Mr. Chair.
And thank you, Mr. Wheeler, for being here today. I
appreciate it. I know there has been a lot of talk about the
small refinery exemptions, so I am going to dive in right with
you.
Over the past year and a half, EPA has taken actions that
benefit refiners at the expense of farmers, and by
retroactively granting an unprecedented number of small
refinery exemptions, EPA effectively waived 2.25 billion
gallons from refiners' 2016 and 2017 RFS obligations.
Not only do these actions contradict President Trump's
pledge to uphold congressionally mandated volumes, but they
have also destroyed corn and ethanol demand, leading to lost
income for Iowa's farmers, at a time when farm income is
already at its lowest level since 2006.
Yes or no, Mr. Wheeler, do you believe the RFS should be
implemented in a manner consistent with the original intent of
Congress?
Mr. Wheeler. Yes, I do.
Senator Ernst. Thank you. So, let's distill this even
further, then. For compliance year 2017 the EPA granted 29
small refinery exemptions, totaling 1.45 billion gallons, which
removes that many gallons from obligated parties' compliance
requirement, which is the 15 billion gallons, that is the
implied corn ethanol requirement, minus the 1.45 billion
gallons is 13.55 billion gallons.
So, you just take the 15 that is implied, that is the
requirement, minus the 1.45, and it gives you 13.55 billion
gallons. So, that is about 10 percent below the statutory
requirement, is that correct? It would be about 10 percent.
Mr. Wheeler. I will trust your math, Senator, yes.
Senator Ernst. OK. So, yes, it is about 10 percent below
the statutory requirement. So, if these gallons aren't
reallocated somewhere, then you are not implementing the RFS in
a manner that is consistent with the original intent of
Congress, correct?
Mr. Wheeler. Well, part of the original intent of Congress
was also to grant the waivers, and there is not a provision for
reallocating that. We are taking a look at that issue, but we
are trying to be much more clear and transparent as we grant
any small refinery waivers. As you are aware, we have been sued
twice on this for not granting enough, and we have lost both
times.
Senator Ernst. I understand that. There is also an
obligation, though, of 15 billion gallons, so those gallons
that have been granted waivers for, we have to figure out a
real allocation strategy.
Mr. Wheeler. I agree we have to figure out a real
allocation strategy, but we are confined by the law.
Senator Ernst. Thank you. The law does require 15 billion
gallons.
So, last November, before this Committee, you were
committed to issuing a determination on whether or not the EPA
can grant the Reid Vapor Pressure waiver, and just last week,
in Iowa, President Trump again expressed support for removing
the outdated regulatory barrier preventing the sale of E15
year-round and indicated his Administration is ``very close to
implementing the RVP waiver.''
Can you state for the record that EPA has the authority to
begin a rulemaking process to provide RVP relief for ethanol
blends of E15 and higher?
Mr. Wheeler. We can certainly start that process. As you
know, Senator, there are certainly people that don't believe we
have that authority. The legislation that this Committee
considered last year would have been very clear in giving EPA
that authority, but we are looking at that issue, as you and I
have discussed a few times and am happy to discuss with you
further, on moving forward on an RVP issue.
Senator Ernst. And we find that that is very important and
something that the President has committed to.
I will say, in closing, that RVP parity and the sale of E15
year-round is a no cost solution that will expand a domestic
market for farmers who have been adversely impacted by
retaliatory tariffs. RVP parity would not only boost commodity
prices, but also be viewed across rural America as the Trump
administration taking concrete action to help during a time of
economic hardship.
Acting Administration Wheeler, I do encourage you to follow
through on the President's directive and remove this
unnecessary and ridiculous restriction. I look forward to
working with you on these issues. I know we will have many,
many discussions to follow. Thank you very much.
Mr. Wheeler. Yes, Senator. I look forward to those.
Senator Ernst. Thank you.
Thank you, Mr. Chair.
Senator Inhofe. Thank you, Senator Ernst.
Taking the prerogative of the Chairman, I want to recognize
myself for a unanimous consent request.
Last week, Platts ran a story entitled ``U.S. Small
Refinery Waivers Not Likely Lowering Biofuel Blending.'' The
article cites Sandra Dunphy, an independent analyst who
testified last week before the House Energy and Commerce
Committee, and I ask unanimous consent to enter this article
into the record at this point.
Without objection, so ordered.
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Senator Inhofe. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Welcome, Administrator Wheeler.
Mr. Wheeler. Thank you, Senator.
Senator Whitehouse. As you know, I viewed your
predecessor's tenure as one characterized by tawdry personal
behavior in office, a desire to do damage to the Agency that he
led, a flagrant absence of transactional integrity and horrible
environmental policies, and I see you as a remedy to three of
those four, so in that sense I welcome you.
Mr. Wheeler. Thank you, Senator, three out of four.
Senator Whitehouse. My visit to you, I appreciated very
much your courtesy in having me in, and I very much hope that
you follow through on putting Teddy Roosevelt's picture up on
your wall. I think that would be a good reminder and a good
signal.
A lot of what needed to be repaired at EPA had to do with
process stuff, rather than the substantive disagreement you and
I may have on environmental issues, and some of the process
stuff had to do with enforcement. In the first 9 months of the
Trump administration which we have data for, enforcement
actions declined by 30 percent compared to the first 9 months
of the Bush administration, and more than 35 percent compared
to the first 9 months of the Obama administration.
In that same period, EPA sought 50 percent less in fines
and money for environmental cleanup than in the Bush
administration and almost 90 percent less than under the Obama
administration. Some of that appears to have been a decision
made by the EPA Office of Compliance and Enforcement to seek
headquarters' approval before beginning certain investigatory
actions, and I have the memo here: ``Effective immediately OECA
Headquarters review is required prior to issuance of
information requests under the Clean Air Act, RCRA, and the
Clean Water Act.''
I would ask that memo be made an exhibit.
Senator Inhofe. Without objection.
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Senator Whitehouse. What is your intention regarding that
headquarters review stymying of what had always been the
prerogative of the different regional agencies in getting
information about potential environmental violations?
Mr. Wheeler. Senator, I haven't seen that memo. Is there a
date?
Senator Whitehouse. This memo was dated May 31.
Mr. Wheeler. Of this year or last year?
Senator Whitehouse. Of 2017. So it has been in place for a
while. Obviously, if you have to run the ability to even ask
information requests through headquarters, that gives
headquarters the chance to either just create massive
institutional delay or even put the kibosh on an investigation
from its very beginning, and that doesn't seem like the right
role for headquarters.
Mr. Wheeler. I was not aware of that memo. I would point
out, though, that we did not have a Senate confirmed person and
head of OECA until December of last year. I believe that is the
longest time that the Agency had ever gone without a Senate
confirmed enforcement person. I think the numbers have gone up
significantly since Susan Bodine took over the office, and I
think the program itself has improved quite a bit.
Senator Whitehouse. Well, I would like to ask you to get
back to me on whether this memo is still in place.
Additionally, one of the problems that bedeviled people
trying to get information out of EPA was that FOIA requests
were customarily provided extremely slowly, and often only
after litigation to force the issue; and Members of Congress,
myself included, were told we will get you the information you
ask for when we get around to it through the FOIA process.
I don't think either of those is good practice for a public
agency. Could you let me know what you are doing with respect
to FOIA compliance and with respect to Committee requests for
information?
Mr. Wheeler. Absolutely. First of all, on FOIA, I know at
the beginning of this Administration we had a 700 FOIA case
backlog, some cases going back to 2008. We have cleared up the
entire backlog.
I would also just point out, for the Administrator's Office
at EPA, we saw a 415 percent increase in the number of FOIA
requests. What we are doing is we consolidated the FOIA program
into one office under our General Counsel's Office, and we are
in the process of hiring additional FOIA people.
On the requests to the Committee, as Senator Carper could
tell you, when I worked here on staff, I worked very hard to
make sure that the minority received information from the
Agency, and I will continue to do that as the Acting
Administrator at EPA. I know that we have responded to 54 of 67
requests from the minority members of this Committee over the
last year and a half.
Senator Whitehouse. Thank you. I will send you a list of
the ones that remain outstanding, and you can plow through
those as well.
Let me just close by saying that I know you have worked
very closely with industry for a long time, and I hope that you
will give your very serious and earnest consideration to the
concerns of people like me from coastal States. We are seeing
climate change driven sea level rise that is going to require
us to redraw the map of my damn State. If that is not something
to make a Senator serious about protecting it, I don't know
what is.
So, I hope that in this position you will take into account
not only the concerns of industry and the concerns of the
square States in the middle of the country that don't have
coasts, but those of us who are looking at actually having to
redraw the maps because of what is happening.
Thanks very much.
Mr. Wheeler. Thank you, Senator.
Senator Barrasso [presiding]. Thank you, Senator
Whitehouse.
Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman.
Mr. Wheeler, first of all, welcome to the Committee; it is
good to see you once again, sir.
Mr. Wheeler. Thank you.
Senator Rounds. I appreciate your interest in your opening
statement regarding certainty and the desire to move forward
with certainty and transparency. I do think what Senator Ernst
was trying to get at with regard to the Renewable Fuel Standard
and the small refinery limitation, or at least an exemption for
them, and how those two fit together, I would like to explore
that with you a little bit. Because it is critical that the
Renewable Fuel Standard remain in effect and that it be honored
and that it be something that producers in the central part of
the country can count on. They have invested billions of
dollars in creating an ethanol industry, and one that they had
expected to be in until at least the year 2022.
Now, if we read this correctly, there clearly was the
intent of Congress that there be, for traditional ethanol
production, a 15 billion gallon per year allowance. We also
understand that within that same legislation that there was an
allowance that you could make exceptions for hardship for small
refineries. There was nothing that we can find that indicates
that that would limit or reduce the 15 billion gallon minimum
for traditional ethanol production.
Can you share with me where you would come up with or where
there would be logic in taking or in reducing the Renewable
Fuel Standard from the 15 billion to follow what was already
included in the original law? In other words, when we wrote the
law, when Congress wrote the law, they clearly understood that
15 billion was there and made clear. They also understood that
we would take into account that small refineries may have a
hardship. There was nothing that indicated that that 15 billion
would be reduced.
Can you share with me a little bit your thought process on
why you would not continue to push and to reallocate for the 15
billion gallons?
Mr. Wheeler. Well, as one of the former congressional
staffers who helped write that section of the law, I wish we
had spent a little bit more time on some of the details of it
now that I am helping to implement it. I could start by saying
that we are working to provide more transparency around the
small refinery program, the exemption program.
We are creating a dashboard where we will publicize all the
information about when we grant a waiver and the circumstances
around the waiver. We have to balance that with the
confidential business information of the impacted companies,
but we are working to try to be more transparent on that side
of the program, and we are looking to see what we can do as far
as making up the difference when we have to grant a waiver from
the 15 billion gallons.
But it is not a clear cut----
Senator Rounds. If I could, I don't think, and I don't find
any place where it says it is a waiver from the 15 billion. I
think it says an individual refinery may get from their
responsibility, but that doesn't absolve us from meeting the 15
billion gallon limit.
Mr. Wheeler. I agree. But then you have the problem,
though, that the waivers are being requested and granted after
the numbers have already been set, and we are talking about
whether we can go back retroactively to change the numbers and
change the compliance numbers for the other people in the
industry.
Senator Rounds. Well, I like the fact that you are looking
at transparency within this process, and in fact, I think you
are moving in the right direction. I actually sent a letter to
your predecessor, dated April 13th of this year, requesting
that the EPA provide more information on the factors that go
into the granting of small refinery exemptions.
Mr. Chairman, I would ask unanimous consent that the copy
of the letter be entered into the record.
Senator Barrasso. Without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. I have yet to receive a substantive
response to the letter, as requested, and this is an issue
which is of serious consequence to my constituents in South
Dakota and throughout the upper Midwest.
Would you commit to reviewing this request and responding
to it in a substantive manner?
Mr. Wheeler. Yes, Senator, I will do that.
Senator Rounds. I understand that information that is
designated as confidential business information has reportedly
been a factor in granting small refinery exemptions, but there
must be aspects of the EPA's decisionmaking process that do not
strictly fall under this definition, and I just hope that you
would continue--in an open and transparent process--to share
with us the process that you are using in granting these.
Mr. Wheeler. Yes.
Senator Rounds. The other piece of this, sir, the RVP
across the United States, as the President has indicated his
interest in doing it, I would hope that we would expedite that
process so that we can actually start marketing this product
across the United States year round. And if that happens, I
think a lot of the issues surrounding meeting that RFP would be
handled, because with those markets available year round, it
means people would actually buy the equipment, have the
equipment available if they could use it throughout the year.
Those pumps are expensive, and they don't want to use it if the
EPA is going to come in and say you can use it 6 months out of
the year, but not year round.
Would you commit to trying to expedite that part of this
process to see if we can't get this behind us and help this
industry to succeed?
Mr. Wheeler. Senator, as I am sure you know, that was part
of a broader package of a deal trying to address concerns of
the oil refining industry, along with the concerns of the
ethanol producers, and I am looking actively to try to figure
out how we go forward----
Senator Rounds. I appreciate that.
Mr. Chairman, I know my time has passed, but you have taken
care of the small refineries. What about the small farmers?
What about the folks that are producing on a year to year basis
enough to get buy in a time in which we have trade issues in
front of us, at a time in which they expected that an RFP would
be honored by the Federal Government that we made several years
ago?
You have taken care of the small refineries, but you
haven't taken care of the small farmers. I think we should look
at that.
Mr. Wheeler. The RVO number for 2019 is, I believe, 500
million gallons more than what it was the previous year. We
also added the sorghum pathway to help farmers in finding
another biofuel feedstock for the RFS program.
We are looking very actively to see what we can do to
provide more not just flexibility in the program, but more
assistance to the agricultural community.
Senator Rounds. Look forward to working with you, sir.
Mr. Wheeler. Thank you.
Senator Rounds. Thank you.
Senator Barrasso. Thank you, Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman.
Senator Barrasso. Senator Van Hollen.
Senator Van Hollen. Thank you, Mr. Chairman.
Mr. Wheeler, welcome.
Mr. Wheeler. Thank you, Senator.
Senator Van Hollen. I had a question along the lines that
Senator Carper asked you. He asked you about the Delaware
filing under the Good Neighbor Petition provisions of the Clean
Air Act. Maryland also filed a petition back in November 2016.
EPA did not respond to it until just a few months ago, at which
time they said they proposed to deny the petition.
This is an issue that has united all Marylanders,
Republicans and Democrats alike. All of our members of the
congressional delegation sent a letter to EPA asking EPA to
take another look at this. Governor Hogan, a Republican
Governor, has asked the same thing.
So, the first ask I would have is the same that Senator
Carper made of you. Would you commit to meet with our Maryland
Department of Environment Secretary, Ben Grumbles, to go over
Maryland's position on the Good Neighbor Petition?
Mr. Wheeler. I would be happy to meet with Mr. Grumbles. I
have known him for years and worked with him briefly.
Senator Van Hollen. I appreciate it.
The letter we got back from EPA said that there was not
enough information. I think Ben Grumbles, if you know him, is
very diligent. I looked at it; he provided a lot of
information. And that it was too costly, even though what we
are asking for is plants in these other States to just apply
already existing technology.
Do you have any details on why EPA proposed to deny the
Maryland petition?
Mr. Wheeler. I don't, and I have not looked at the Maryland
petition in the 4 weeks that I have been Acting Administrator.
Senator Van Hollen. I understand. I appreciate your
willingness to do that and meet with Secretary Grumbles. I
think it is important because it is simply unfair, and the
Clean Air Act envisioned this, its amendments envisioned this,
that some States are doing their job to clean up their air, but
their air gets polluted by States that are not doing their job.
So, I hope we can resolve this issue.
I think you live in the Chesapeake Bay Watershed in
Virginia, is that right?
Mr. Wheeler. I do, Senator, yes.
Senator Van Hollen. The Bay agreements over a long period
of time have been one of the great environmental success
stories. You always feel like you are running in place with the
Bay because there is such a drainage basin from so many States
and so much development. But the good news is, as a result of
these agreements, and most recently the 2014 agreement, we
appear to be making progress. Long way to go, but progress.
The most recent agreement included a provision with respect
to the TMDL, total maximum daily load. Can you commit that you,
as the Acting Head of the EPA, will continue to enforce EPA's
role within that agreement?
Mr. Wheeler. Absolutely. I also want to point out it is
good news on the Bay. We have a lot of work to do, but just
over the last 10 years the seagrass in the Bay have gone from
34,000 acres up to 100,000 acres, and that is one of the first
indicators of a healthy bay. So, I think we have made a lot of
progress, and we continue to make progress.
Senator Van Hollen. I appreciate that.
In the House, our House colleagues attached a provision to
the environmental appropriations bill, a rider to eliminate
EPA's enforcement authority under that agreement. I am assuming
that you would oppose that limitation on your enforcement
authority, is that right?
Mr. Wheeler. We would certainly like to keep all the
enforcement authorities that we can, yes.
Senator Van Hollen. Thank you.
Now, just last week EPA released a 2016-2017 milestone at
mid-point progress report on the Bay, and again, as you
indicated, I indicated, there has been some progress. It did
note that the State of Pennsylvania is not meeting its targets
for agriculture and urban-suburban runoff. Actually, as part of
the Farm Bill I have worked on a bipartisan basis to increase
the funds available under the Regional Conservation Partnership
Program, so hoping that will go forward as part of the ag bill.
But what actions can EPA take? As you know, a lot of the
pollution in the Bay does come down the Susquehanna River,
major tributary to the Bay. This has been an ongoing challenge.
What can EPA do to help all of us improve Pennsylvania's
performance?
Mr. Wheeler. We are trying to work more cooperatively with
all the States in the Chesapeake Bay region. I mentioned to
Senator Cardin that in my first week as a Deputy Administrator
I attended the Chesapeake Bay Commission, and next week I will
be attending the Chesapeake Bay Leadership Council meeting in
Baltimore, and that will be my first meeting on the Chesapeake
Bay since I have assumed the duties of Acting Administrator.
I need to look a little bit more into what we can do to
work with Pennsylvania, but we are trying to work cooperatively
with all the States in the Chesapeake Bay.
Senator Van Hollen. No, I appreciate that, and EPA has
played a vital role, so I appreciate your commitment there.
I will say, as your own EPA report indicated, the pollution
coming down the Susquehanna River from Pennsylvania remains a
major challenge, so we want to work cooperatively with
Pennsylvania as well, but we really do need your help. So,
thank you.
Mr. Wheeler. Thank you, Senator.
Senator Barrasso. Senator Capito.
Senator Capito. Thank you, Mr. Chairman.
Thank you, Mr. Wheeler, for being here with us today. I
would first like to take a moment to express my appreciation
for your emphasis on improving transparency and increasing good
governance practices at the EPA. From what I have heard in the
testimony thus far, very cooperative spirit on both sides of
the aisle to help not just with our national issues, but with
our State issues as well, and certainly appreciate that.
As you well know, West Virginia bore the brunt of the last
8 years of bureaucratic red tape coming out of Washington, a
lot of it from the EPA. We are climbing out of that. Our
unemployment rate is near its lowest since 2008; our growth
rate is tracking the national average, and maybe in some has
even exceeded the national rate, which is great. And this is in
anticipation of things that are going on now, the regulatory
relief that you have been a part of at the EPA, the tax reform
and infrastructure investments.
So, we are encouraged by what we see, but we still have a
labor participation rate that is lower, and we need to use our
skilled work force deployed in responsible and innovative
utilization of our natural resources, which we have in
abundance in my State.
My first question is on the Clean Power Plan. As you know,
I think you know, I am sure you know, that Appalachia was
essentially ignored when the Clean Power Plan first rule was
proposed. We couldn't get the EPA to come. Subsequently, this
EPA held its first hearing in West Virginia and heard opinions
from all sides about the Clean Power Plan.
I have talked about our growing economy in West Virginia
and being led by our energy sector. I would like to know from
you how do you plan to address the failings that were in the
previous Clean Power Plan? Where are you on this, and do you
expect your rule will return to an inside the fence approach
and use technologies that are actually commercially available?
That was another sticking point, requiring technologies that
were never commercially viable and touting them as being a
panacea, I think, which we knew did not really exist.
Your comments on the Clean Power Plan.
Mr. Wheeler. Thank you, Senator. On my first day as Acting
Administrator, we sent a new proposal to OMB for interagency
review for replacement for the Clean Power Plan. The
difference, I would say, between this approach and the approach
of the Obama administration is that we are following the four
corners of the Clean Air Act in what we are proposing.
The 2015 proposal had the dubious distinction of being the
first environmental regulation to have a stay issue by the
Supreme Court, and I believe that was done because it was
outside of what the law directed us to do. So, we are going to
follow the law, and hopefully the proposal will be coming out
for public comment sometime in the next 30 to 60 days.
Senator Capito. OK. Thank you.
I want to talk about chemical safety thresholds. I would
encourage a particular emphasis on the PFOS. This is a chemical
that has been found in waters particularly in the Parkersburg
and Martinsburg area of our State. I had previously urged
transparency with the former Administrator when it came to
release of the toxicological report that came out that was very
long and very complicated, so I can't really interpret that for
you. I am hoping that you will do that as well.
So, would you agree that the PFOS issue is a serious
concern and is a high priority within the EPA?
Mr. Wheeler. Absolutely, it is a serious concern, and it is
a high priority. It was actually one of the first briefings
that I requested from the career staff at the Agency when I
first started as the Deputy Administrator, and it remains a
priority for me and for the Agency as we move forward.
Senator Capito. Well, thank you for that. I think that was
obviously the intent of the law that we all worked on,
bipartisan, but I am concerned that we still don't have a
leveling of the appropriate levels both in safety levels either
in the soil or in the water, and it is causing a lot of concern
for me as a representative of our State.
Let me just talk a little bit about coal, because we know
coal has come back. It has come back to a reasonable level.
Could you, just in the brief time we have left, say from your
perspective--I know you have a lot of experience with coal--how
do you see this in terms of a more robust coal industry and the
environment, and where you are planning to move with that?
That is a big question.
Mr. Wheeler. It is. Let me address it this way. I have
always believed in an all of the above on energy sources, and I
don't believe that it is the EPA's job to pick winners or
losers. It is our responsibility to enact the laws that
Congress passes. Under my leadership, we will not pick winners
and losers between the different fuel sources. That is
something that the market will have to decide. But I think it
is very important that we don't enact regulations that penalize
one energy source over another or emphasize one energy source
over another.
Last week, I visited a solar panel facility in
Massachusetts. For the first time, 2 weeks ago; I had never
been to the Marcellus Shale to see the drilling that is going
on there.
We are trying very hard to be straight down the road and
not pick winners or losers on energy sources. I don't believe
that is the EPA's responsibility.
Senator Capito. Thank you very much.
Senator Barrasso. Thank you, Senator Capito.
Senator Markey.
Senator Markey. Thank you, Mr. Chairman.
Mr. Wheeler, since 2010 the new fuel economy emission
standards have saved consumers more than $63 billion at the
pump, kept 540 million barrels of oil in the ground, reduced
carbon pollution by 250 metric tons. Over the lifetime of the
current fuel economy standards, consumers will save $1 trillion
on gasoline and will keep 12 billion barrels of oil in the
ground.
That is the simple formula for fuel economy, you save
consumers money, and you save the planet at the same time, and
that is why big oil is attacking these standards. The oil
industry is scared to death that the billions of barrels of
reserves they are currently claiming on their balance sheets to
the Securities and Exchange Commission will end up as so called
stranded assets. They are scared to death that $1 trillion will
stay stranded in the pockets of consumers, and that is why the
Trump administration is moving to roll back these standards.
There has been a lot of news recently about a rift between
President Trump and the Koch brothers. President Trump and the
Koch brothers might disagree these days on politics, but they
are always in agreement on petroleum, and that is why this
rollback of fuel economy standards is really all about
petroleum. It is oil above all.
According to a leaked draft of the proposed rule, the Trump
rollback of fuel economy standards, the No. 1 option that the
Trump administration is considering is freezing the standards
at 2020 level, that we don't increase the fuel economy
standards after 2020.
Mr. Wheeler, yes or no, do you agree that freezing the fuel
economy emissions standards at 2020 levels would lead to more
oil being consumed than if we kept the standards at their
current trajectory?
Mr. Wheeler. Senator, I am not sure on that, and I want to
be on the record as saying that I have not talked to anybody in
the oil industry or received any information from them.
Senator Markey. I didn't ask you that question. I asked you
would more oil be consumed if we froze the standards at 2020.
That is my question, yes or no.
Mr. Wheeler. I believe the analysis shows that more oil
would be consumed.
Senator Markey. That is correct. Even the Trump
administration----
Mr. Wheeler. But it also would save 12,000 lives at $500
billion.
Senator Markey. Even the Trump administration's draft
report acknowledges we will consume 500,000 more barrels of oil
per day if we freeze these standards.
And by the way, by 2030 we back out under existing
standards, if they continued, 2.5 million barrels of oil per
day being imported into the United States from Saudi Arabia,
from other OPEC countries. That is the number, 2.5 million
barrels of oil a day.
Yes or no, Mr. Wheeler, do you agree that freezing the
standards at 2020 levels would mean consumers would pay more to
fill up their gas tanks than under the current standards?
Mr. Wheeler. That, I do not know. I know that we have $500
billion in savings to the American consumers under the
proposal.
Senator Markey. Well, according to the Union of Concerned
Scientists, freezing the standards would cost American drivers
an additional $20 billion alone in 2025 due to higher spending
on gasoline. That is money that is transferred right out of the
pockets of consumers into the big oil coffers.
Yes or no, do you agree that a freeze on increasing the
fuel economy standards would lead to more climate pollution
than if we maintained the current standards?
Mr. Wheeler. I believe our data shows it would be
negligible between the Obama proposal and our proposal.
Senator Markey. Well, you are wrong. Freezing the standards
would mean an additional 2.2 billion metric tons of global
warming pollution by 2040, equal to 43 coal fired power plants.
There is a famous line, Mr. Wheeler, in the movie ``All the
President's Men'': follow the money. When you look at the $1
trillion that big oil will never receive from American
consumers and the 12 billion barrels of oil that they will
never produce under the current standards, it becomes pretty
clear why big oil would want to attack these standards, and all
the auto industry has to do is sit back and drive the getaway
car.
So, let me just ask you one final question, Mr. Wheeler.
Administrator Pruitt committed to release the EPA scientific
report on the carcinogen formaldehyde, but never did so. Will
you commit to releasing this report?
Mr. Wheeler. Are you referring to the IRIS report on
formaldehyde?
Senator Markey. Yes.
Mr. Wheeler. I have not been briefed specifically on the
IRIS formaldehyde report, but I have sat down with our IRIS
staff, and what I am trying to do is to provide more certainty
to that process to make sure we know how the different
assessments will be used in the regulatory programs. It is my
understanding that we still have a number of steps to complete
on the formaldehyde assessment.
Senator Markey. When will you release it?
Mr. Wheeler. The question that I have to our IRIS staff is
what is the purpose of the assessment at this point and whether
or not the data that they have used in the assessment is still
current, because I know they started that before 2010.
Senator Markey. Will you commit to releasing that report?
Mr. Wheeler. I am sure we will release it, but I need to
make sure that the science in the report is still accurate.
What I have asked not just for that report, but for everything
that we are doing on the IRIS program, to make sure that we
know the purpose of the assessment, because we have a lot of
chemicals that we should and could be assessing under the IRIS
program, and I want to make sure that they are being used in a
regulatory process, because we have other chemicals that need
to be assessed as well. So that is one of the questions that I
have asked our program staff.
Senator Markey. Well, Pruitt committed to releasing it, and
I hope that you put it at the top of your list. I expect you to
and get it released so that the public can understand what
those dangers are. Thank you.
Mr. Wheeler. And Senator, on the different reports that you
mentioned under the CAFE, we should be going out in the Federal
Register in the next day or two with the CAFE proposal, and I
would hope that all those organizations will submit those
reports for the record.
Senator Barrasso. We are now into the second vote and about
halfway through. I wanted to get to the additional.
Thank you so much for your comments.
Senator Fischer.
Senator Fischer. Thank you, Mr. Chairman.
And thank you, Administrator Wheeler, for being here today.
Mr. Wheeler. Thank you.
Senator Fischer. Many of my colleagues have already
discussed this issue, but I would also like to visit with you
about small refinery exemptions to the RFS.
As you know, the law allows refineries that produce 75,000
barrels or less per day to seek an exemption from the RFS for
the reason of disproportionate economic hardship. The EPA, in
consultation with Department of Energy, must consider the
findings from a 2011 DOE study and ``other economic factors''
when analyzing these requests.
So, this disproportionate economic hardship is the critical
factor in determining whether a small refinery is awarded an
exemption. How is that calculated? That is what is of great
interest to small refineries, because it could decide whether
they have to comply with the RFS or whether they get a free
pass.
My constituents in Nebraska, and others for whom the RFS is
a very important item, would be interested in how you interpret
that process for purposes of making sure that the law is being
upheld; and for Congress, who wrote the law, understanding how
you calculate disproportionate economic hardship is vital for
purposes of making sure that you are carrying out that law as
we intended. So, for these reasons, I would like to discuss how
you are doing that analysis.
It is my understanding that the law does not define
disproportionate economic hardship. It is also my understanding
that EPA regulations do not define disproportionate economic
hardship. By its definition, disproportionate means you are
comparing the impact on the petitioner to the impact on one or
more others. Is that correct?
Mr. Wheeler. I believe that is correct, Senator.
If I could say, on the small refinery process, we work
closely with Department of Energy. They do the initial
analysis, and then we work with them on providing additional
analysis as well.
What I have committed to do, and what we are going to do is
provide more transparency on how we make these decisions. We
are in the process of developing a dashboard so we can put all
the information out publicly so people know when we are issuing
a small refinery waiver and the circumstances around that. We
have to make sure that we take into account any confidential
business information of the company applying for the small
business refinery exemption, but we want to try to be as
transparent as we can and put all that information, including
our process, out for the public to see.
Senator Fischer. Just to confirm, are you saying that the
EPA compares the high cost of compliance relative to the entire
refinery industry? So, all you basically have to prove, Mr.
Administrator, is that you are a small refinery and produce
less than 75,000 barrels a day, and that is your ticket in the
door?
Mr. Wheeler. Senator, if I could respond back to you in
writing on that, because I want to be very careful because this
issue is being looked at very carefully----
Senator Fischer. It is.
Mr. Wheeler [continuing]. Not only by us, by everybody
else, and I want to make sure that I am giving you the correct
information. If I could respond back to you in writing, I would
appreciate that.
Senator Fischer. I would appreciate it. Thank you, sir.
What about the disproportionate economic hardship? The
court, in 2017, said the EPA can't go so far as to require that
a refinery be at risk of going out of business to exempt them
from the RFS. But I believe it is equally unacceptable for the
EPA to merely exempt a refinery because they fit the definition
of a small refinery. And I would think you would agree that
there is space between those two options. Would you?
Mr. Wheeler. I would agree there is space between those two
options. I think just because a company is a small refinery
does not mean it should be entitled to a small refinery
exemption; there are other market and business concerns to go
into that analysis.
Senator Fischer. When the Agency awarded those 48 small
refinery waivers retroactively for 2016 and 2017, I think that
it effectively established a de facto RIN cap. Do you agree
with that?
Mr. Wheeler. A de facto RIN cap? We take that into account,
we take into account the available RINs as we move forward in
setting the RVO numbers for the next year, so I am not sure
that I would say it was a de facto RIN cap, because we do look
at the RIN numbers available before we set the next RVO, and
try to factor that into our analysis.
Senator Fischer. OK. If I could get you questions on this
pretty complex issue, I would appreciate answers in a timely
manner.
Mr. Wheeler. Absolutely, Senator.
Senator Fischer. Thank you, Administrator.
Mr. Wheeler. Thank you.
Senator Fischer. Thank you, Mr. Chair.
Senator Inhofe [presiding]. Having just voted, I assume
that we have gone all the way through and that you have a
request, Senator Carper, for one last question.
Senator Carper. Yes, I do, please.
Senator Duckworth has not asked her first round. She was
here, but other people came in ahead of her, so she is going to
try to get back. Hopefully she does, and if she does, I will
yield to her. But thanks, Mr. Chairman.
I want to follow up, if I could, Mr. Wheeler, on your
previous answer on cross-State pollution. In your answer, you
may recall you stated that most areas will be in attainment for
ozone in the early 2020s. So, with that having been said, here
is my question. EPA has not modeled the effects of all of its
planned clean air rollbacks on cross-State ozone pollution.
Given that, can EPA be certain that Delaware, Maryland, New
Jersey, and all these other States on the East Coast will be in
attainment? How can EPA be certain that all of us are going to
be in attainment in 2023, as EPA has claimed it would be,
because you have not modeled the effects of all its planned
Clean Air Act rollbacks on cross-State ozone pollution? It
seems like we are getting ahead of the horse.
Mr. Wheeler. I can't predict with certainty on that, but
what I am told by the career staff at the Agency in the Air
Office is that our analysis shows that most areas of the
country will be able to reach attainment in the early 2020s.
There are, of course, factors that could change between now and
then, but on the current pathway that we are with the emissions
that we forecast in the different States in the areas of the
country, we anticipate that most areas of the country will be
in attainment in the early 2020s.
Senator Carper. Maybe most areas, but a bunch of the areas
that are not in attainment now, again, it just seems
counterintuitive that EPA has not modeled the effects of all of
its planned clean air rollbacks on cross-State pollution; yet
EPA feels like Delaware and other States are going to be in
attainment in 2023. It just doesn't add up. We will be
following up with questions for the record, and maybe we can
get some clarification on this. Thank you.
Mr. Wheeler. Thank you, Senator.
Senator Inhofe. Thank you, Senator Carper.
Senator Whitehouse, did you want to?
Senator Whitehouse. Thank you, I would like to, Mr.
Chairman.
I wanted to follow up with Administrator Wheeler on
something that he said in response to a question to another
Senator, and it had to do, Mr. Wheeler, with not picking
winners and losers in the energy industry, and that you would
treat all energy sources equally.
If you are presented with a polluting energy source on the
one hand and a non-polluting energy source on the other, how do
you treat them equally, when it is EPA's duty to protect
against pollution?
Mr. Wheeler. Senator, if one energy source has emissions of
a criteria pollutant or any of the other pollutants that we
regulate, we would, of course, regulate the pollutants for that
industry. I am not suggesting that every single environmental
law would apply to every single industry, and we would treat it
across the board. The coal combustion residual would only apply
to coal fired power plants; we wouldn't apply something like
that, of course, to solar or wind. My point is that we
shouldn't be enacting regulations that favor one energy source
over the other. We will implement all of the laws passed by
Congress.
Senator Whitehouse. How would a regulation that protected
against pollution not advantage a non-polluting energy source
over a polluting energy source?
Mr. Wheeler. I believe some of the criticisms of the Obama
Clean Power Plan, for example, is that it gave preferential
treatment to some energy sources on the way that they
calculated emissions. My point in saying that is that it is not
the EPA's role. We are trying to be very even handed and not
pick winners and losers between the different energy sources
and equally promote all of them at the same time.
Senator Whitehouse. I get that, but I just want to make
sure that your view of what is preferential among energy
sources isn't driven by whether or not they are polluters.
Because if you are not going to prefer, in the sense of putting
regulatory protections up against polluting versus non-
polluting sources, we have a problem on our hands.
Mr. Wheeler. Senator, we are regulating sources that
pollute, that release, that have emissions.
Senator Whitehouse. Great. So, if a polluting source has to
bear a regulatory burden to protect against its pollution, that
is not what you mean by picking winners and losers.
Mr. Wheeler. That is not what I mean, no.
Senator Whitehouse. Thank you.
Senator Inhofe. Thank you, Senator Whitehouse.
We were going to come to an abrupt stop after this vote,
but we are going to make an exception because Senator Duckworth
wants to be heard, but she will be the last one to ask
questions, and then we will close the meeting.
Senator Duckworth.
Senator Duckworth. Thank you, Mr. Chairman. You are very
generous and quite a gentleman.
Senator Inhofe. Well, thank you. That is because you
cosponsored my aviation bill.
[Laughter.]
Senator Duckworth. Exactly. Exactly. And I just talked to
the airline pilots this morning, and they are big fans of
yours.
Mr. Wheeler, although we don't see eye to eye on most
environmental issues, I believe that you are making a good
faith effort to reverse the course at EPA and operate in a
transparent manner. For example, I support your recent memo
calling on your colleagues to be open and accessible, and
committing to leading by example on open Government efforts, so
I thank you for that. I think this is a critical first step
toward restoring the public's trust in the EPA.
Acting Administrator Wheeler, as you know, Congress
provided you with an incredibly broad authority under the Safe
Drinking Water Act to hire up to 30 individuals without regard
to civil service laws. For years, under Republican and
Democratic administrations, Congress has trusted EPA
Administrators to responsibly exercise this special hiring
authority; however, your predecessor violated this trust in
using the authority to give personal aides lavish pay raises
after the White House denied such requests.
To make sure you and future Administrators use this special
hiring authority in an ethical and transparent manner, Ranking
Member Carper and I introduced the EPA Special Hiring Authority
Transparency Act. Our bill simply requires that EPA report to
Congress whenever it makes an appointment.
To restore confidence in the use of this authority, will
you commit to supporting our legislation that will improve
transparency and make sure this Committee is notified in regard
to who is being appointed under the special hiring authority
and why?
Mr. Wheeler. Senator, I would be happy to work with you on
your legislation, and I would be happy to provide a list of the
people that we have hired under that authority as well.
Senator Duckworth. Thank you.
One area I believe we can work together on, in addition, is
reducing lead exposure. Lead is a dangerous neurotoxin for
vulnerable populations like young children, pregnant mothers,
and the elderly. Exposure to lead can be life threatening.
Under your predecessor, an interagency task force on lead
was convened; however, Congress has not been briefed on the
work of this agency. It is unclear whether the Administration
fully understands the urgency of this problem and whether they
are genuinely compelled to address this issue.
Will you support reporting to Congress on the finding of
this task force?
Mr. Wheeler. Yes, Senator, I will.
Senator Duckworth. Thank you.
On a similar note, will you commit to releasing all the
records on the Superfund Task Force?
Mr. Wheeler. I thought we had already done that, but I will
certainly look into that and have to get back to you on that.
Senator Duckworth. Thank you. I appreciate that.
Mr. Wheeler. That predated my time at the Agency.
Senator Duckworth. OK, thank you.
And finally, before I close, I want to address a critical
program, the bipartisan Renewable Fuel Standards program, the
RFS, that has already been discussed at length in this hearing.
Mr. Wheeler. A few times.
Senator Duckworth. A few times, yes. Well, we are all out
there to support our farmers. I am alarmed by this
Administration's efforts to undermine this program. Even Brett
Kavanaugh, the nominee to serve on the Supreme Court, has sided
with the oil industry in several RFS related cases. Mr.
Kavanaugh went as far as to argue that the oil and food
industries were palpably and negatively affected by EPA's
allegedly illegal E15 waiver and had standing to directly
challenge the E15 waiver in court.
As you discussed with my colleagues, Senator Ernst and
Senator Rounds and Senator Fischer, EPA has been undermining
the RFS on abusing the small refinery exemptions. We need to
understand how EPA is making decisions on granting these
exemptions. Will you promise to report to Congress on how these
decisions are being made, provide public notice on these
decisions, and bring greater transparency to this work?
Mr. Wheeler. Absolutely. In fact, we are developing a
dashboard so that the whole public can see what we are doing on
the issue and when and how we are granting the waivers. We have
to be careful that there are confidential business information
claims by some of the refiners when they apply for it, so we
have to guard that, but we want to make sure that we release as
much information as we can to be very transparent and let
everybody know what we are doing and why we are doing it.
Senator Duckworth. Thank you. I need to stress again that
ethanol is an American grown, American produced product, as
opposed to foreign oil that we have sent troops for a decade to
fight over. I would rather be supporting American farmers
growing American produce to put in American gas tanks.
I understand that the EPA may be constrained by law, as you
have testified, and I look forward to working with my
colleagues, Senators Rounds and Ernst, on a legislative fix,
and I very much thank you for being here, and I certainly
enjoyed our discussion, and I very much appreciate the return
to transparency that you are pledging to bring to the EPA.
Thank you.
Mr. Wheeler. Thank you, Senator. I appreciate that.
Senator Inhofe. Thank you, Senator Duckworth. I appreciate
you being here very much.
I have two unanimous consent requests to get into the
record. There will be no other questioners.
First of all, I would note that, last week, 21 Senators
sent a letter to EPA opposing the reallocation of small
refinery obligations to other refineries under the RFS, and I
ask unanimous consent that this letter be made a part of the
record.
Without objection, so ordered.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Second, I have a chart I think is
important. I understand while I was down voting that something
came up, some complaints were there in terms of responses, and
I want to just compliment you and the EPA for the way you have
done that.
The chart is just one example of the huge increase in
correspondence EPA has seen over the last Administration. For
the Administrator's office, it is over 400 percent increase in
fiscal year 2017 over the previous two fiscal years. Again, it
is just for the Administrator's office; it does not include
other programs like air, water, land, general counsel, research
and development, chemicals, and all that.
In total, the EPA has so far responded to 84 percent of the
inquiries elected offices have sent in. That is Federal, State,
and local. EPA has responded to 81 percent of the minority
members' oversight letters, 65.5 percent of all their
inquiries, and it is not done doing so. 23,430 pages of
documents have been delivered to the minority members. I don't
know whether minority has had time to read all of these; I
suggest probably they haven't.
It doesn't sound like an agency that is ignoring anyone.
I want to commend you and get this on the record so that
people are aware of the great job that we are doing with the
EPA. All right?
Mr. Wheeler. Thank you, Senator.
Senator Inhofe. You are very welcome.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. If there are no more questions for today,
members may also submit follow up questions for the record. The
hearing record will be open for 2 weeks.
I want to thank the witnesses for their time and testimony
today, and we are adjourned.
[Whereupon, at 12:11 p.m. the Committee was adjourned.]
| MEMBERNAME | BIOGUIDEID | GPOID | CHAMBER | PARTY | ROLE | STATE | CONGRESS | AUTHORITYID |
|---|---|---|---|---|---|---|---|---|
| Sanders, Bernard | S000033 | 8270 | S | I | COMMMEMBER | VT | 115 | 1010 |
| Shelby, Richard C. | S000320 | 8277 | S | R | COMMMEMBER | AL | 115 | 1049 |
| Wicker, Roger F. | W000437 | 8263 | S | R | COMMMEMBER | MS | 115 | 1226 |
| Moran, Jerry | M000934 | 8307 | S | R | COMMMEMBER | KS | 115 | 1507 |
| Capito, Shelley Moore | C001047 | 8223 | S | R | COMMMEMBER | WV | 115 | 1676 |
| Boozman, John | B001236 | 8247 | S | R | COMMMEMBER | AR | 115 | 1687 |
| Van Hollen, Chris | V000128 | 7983 | S | D | COMMMEMBER | MD | 115 | 1729 |
| Cardin, Benjamin L. | C000141 | 8287 | S | D | COMMMEMBER | MD | 115 | 174 |
| Carper, Thomas R. | C000174 | 8283 | S | D | COMMMEMBER | DE | 115 | 179 |
| Whitehouse, Sheldon | W000802 | 8264 | S | D | COMMMEMBER | RI | 115 | 1823 |
| Gillibrand, Kirsten E. | G000555 | 8336 | S | D | COMMMEMBER | NY | 115 | 1866 |
| Barrasso, John | B001261 | 8300 | S | R | COMMMEMBER | WY | 115 | 1881 |
| Merkley, Jeff | M001176 | 8238 | S | D | COMMMEMBER | OR | 115 | 1900 |
| Duckworth, Tammy | D000622 | S | D | COMMMEMBER | IL | 115 | 2123 | |
| Fischer, Deb | F000463 | S | R | COMMMEMBER | NE | 115 | 2179 | |
| Booker, Cory A. | B001288 | S | D | COMMMEMBER | NJ | 115 | 2194 | |
| Ernst, Joni | E000295 | S | R | COMMMEMBER | IA | 115 | 2283 | |
| Rounds, Mike | R000605 | S | R | COMMMEMBER | SD | 115 | 2288 | |
| Sullivan, Dan | S001198 | S | R | COMMMEMBER | AK | 115 | 2290 | |
| Inhofe, James M. | I000024 | 8322 | S | R | COMMMEMBER | OK | 115 | 583 |
| Markey, Edward J. | M000133 | 7972 | S | D | COMMMEMBER | MA | 115 | 735 |
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