[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE ROLE OF THE STATES IN PROTECTING THE ENVIRONMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 15, 2013
__________
Serial No. 113-7
Printed for the use of the Committee on Energy and Commerce
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COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan
Chairman
RALPH M. HALL, Texas HENRY A. WAXMAN, California
JOE BARTON, Texas Ranking Member
Chairman Emeritus JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky Chairman Emeritus
JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska ANNA G. ESHOO, California
MIKE ROGERS, Michigan ELIOT L. ENGEL, New York
TIM MURPHY, Pennsylvania GENE GREEN, Texas
MICHAEL C. BURGESS, Texas DIANA DeGETTE, Colorado
MARSHA BLACKBURN, Tennessee LOIS CAPPS, California
Vice Chairman MICHAEL F. DOYLE, Pennsylvania
PHIL GINGREY, Georgia JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana ANTHONY D. WEINER, New York
ROBERT E. LATTA, Ohio JIM MATHESON, Utah
CATHY McMORRIS RODGERS, Washington G.K. BUTTERFIELD, North Carolina
GREGG HARPER, Mississippi JOHN BARROW, Georgia
LEONARD LANCE, New Jersey DORIS O. MATSUI, California
BILL CASSIDY, Louisiana DONNA M. CHRISTENSEN, Virgin
BRETT GUTHRIE, Kentucky Islands
PETE OLSON, Texas KATHY CASTOR, Florida
DAVID B. McKINLEY, West Virginia JOHN P. SARBANES, Maryland
CORY GARDNER, Colorado JERRY McNERNEY, California
MIKE POMPEO, Kansas BRUCE L. BRALEY, Iowa
ADAM KINZINGER, Illinois PETER WELCH, Vermont
H. MORGAN GRIFFITH, Virginia BEN RAY LUJAN, New Mexico
GUS M. BILIRAKIS, Florida PAUL TONKO, New York
BILL JOHNSON, Missouri
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina
Subcommittee on Environment and Economy
JOHN SHIMKUS, Illinois
Chairman
PHIL GINGREY, Georgia PAUL TONKO, New York
Vice Chairman Ranking Member
RALPH M. HALL, Texas FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania LOIS CAPPS, California
ROBERT E. LATTA, Ohio JERRY McNERNEY, California
GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida DORIS O. MATSUI, California
BILL JOHNSON, Missouri HENRY A. WAXMAN, California, ex
JOE BARTON, Texas officio
FRED UPTON, Michigan, ex officio
C O N T E N T S
----------
Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 1
Prepared statement........................................... 3
Hon. Paul Tonko, a Representative in Congress from the State of
New York, opening statement.................................... 4
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 6
Prepared statement........................................... 7
Hon. Joe Barton, a Representative in Congress from the State of
Texas, opening statement....................................... 7
Prepared statement........................................... 8
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 9
Prepared statement........................................... 10
Hon. Janice D. Schakowsky, a Representative in Congress from the
State of Illinois, opening statement........................... 11
Prepared statement........................................... 11
Witnesses
Harold R. Fitch, Supervisor of Mineral Wells, and Chief, Office
of Oil, Gas and Minerals, Michigan Department of Environmental
Quality........................................................ 12
Prepared statement........................................... 15
Answers to submitted questions............................... 128
Matthew J. Lepore, Director, Colorado Oil and Gas Conservation
Commission..................................................... 18
Prepared statement........................................... 20
Answers to submitted questions............................... 143
Sarah Pillsbury, Administrator, Drinking Water and Groundwater
Bureau, New Hampshire Department of Environmental Services..... 38
Prepared statement........................................... 40
Answers to submitted questions............................... 163
Jeffery Steers, Director, Land Protection and Revitalization
Division, Virginia Department of Environmental Quality......... 51
Prepared statement........................................... 54
Answers to submitted questions............................... 167
Teresa Marks, Director, Arkansas Department of Environmental
Quality........................................................ 61
Prepared statement........................................... 63
Answers to submitted questions............................... 173
Hon. Pricey Harrison, North Carolina House of Representatives.... 70
Prepared statement........................................... 72
Answers to submitted questions............................... 189
Hon. Michael A. Sesma, Council Vice President, City of
Gaithersburg, Maryland......................................... 83
Prepared statement........................................... 86
Answers to submitted questions............................... 197
Submitted Material
Statement of 7 environmental groups.............................. 119
Statement of Patrick Parenteau................................... 121
Statement of Susan Parker Bodine................................. 125
THE ROLE OF THE STATES IN PROTECTING THE ENVIRONMENT
----------
FRIDAY, FEBRUARY 15, 2013
House of Representatives,
Subcommittee on Environment and Economy,
Committee on Energy and Commerce
Washington, DC.
The subcommittee met, pursuant to call, at 9:29 a.m., in
room 2123, Rayburn House Office Building, Hon. John Shimkus,
(chairman of the subcommittee) presiding.
Present: Representatives Shimkus, Gingrey, Hall, Murphy,
Latta, Cassidy, McKinley, Bilirakis, Johnson, Barton, Upton (ex
officio), Tonko, Green, DeGette, McNerney, Schakowsky, Barrow,
and Waxman (ex officio).
Staff Present: Nick Abraham, Legislative Clerk; Charlotte
Baker, Press Secretary; Matt Bravo, Professional Staff Member;
Allison Busbee, Policy Coordinator, Energy and Power; Jerry
Couri, Senior Environmental Policy Advisor; David McCarthy,
Chief Counsel, Environment/Economy; Andrew Powaleny, Deputy
Press Secretary; Tina Richards, Counsel, Environment; Krista
Rosenthall, Counsel to Chairman Emeritus; Chris Sarley, Policy
Coordinator, Environment and Economy; Lyn Walker, Coordinator,
Admin/Human Resources; Phil Barnett, Minority Staff Director;
Alison Cassady, Minority Senior Professional Staff Member;
Jacqueline Cohen, Minority Counsel; Greg Dotson, Minority Staff
Director, Energy and Environment; Caitlin Haberman, Minority
Policy Analyst; and Karen Lightfoot, Minority Communications
Director and Senior Policy Advisor.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Shimkus. Let's see if we can get the doors closed, and
I know the folks in the hallway will be happy to hear.
Good morning. Thank you all for being punctual. Who knows
when votes will occur, they are going to be earlier today, so
we are going to try to get through as much as possible, and
then we will see where we go from there.
The subcommittee will now come to order. I would like to
welcome all the members of the subcommittee to our first
hearing in the 113th Congress. I want to say a special welcome
to our new ranking member, Mr. Tonko, as well as our new vice
chairman, Dr. Gingrey, who is late, not a good sign, and all
our new Republican and Democrat members.
Today's hearing focuses on the important role that States
play in environmental protection under current law. This
hearing will help raise awareness and set the stage for future
discussions we are going to have on environmental protection.
Many of us get caught up with what the U.S. EPA thinks or
what it can do and fail to focus on States and what they can
and must do. The States are by no means junior regulators or
the minor leagues of environmental protection. Rather, their
plate is twice as full. To carry out Federal environmental law,
States have a lot of delegated authority, but States also have
their own protective laws, often beyond anything the Federal
Government has asked.
State regulators have every bit the same educational
background, expertise, desire to protect the environment, and
sense of professionalism as any employee at the EPA, with the
added bonus of actually living in the communities they are
trying to make safe. They intimately know the terrain being
regulated.
Some people might suggest that States lack the will to
enforce their laws or that are reluctant to pass anything
serious. I think that answer is not fair, and I think history
shows that States have generally acted first on matters before
the Federal Government has stepped in to do something. In this
fast-paced, technology-driven society, a static regulatory
regime cannot respond to innovations nor complex problems and
challenging geologies. Let me offer a few examples of what I
mean from issues familiar to our committee.
In the State of Maryland, there was a terrible coal ash
problem. The State did not sit by powerless. Rather, in
December 2008, the Maryland Department of Environmental issued
one of the most robust sets of coal ash rules in the country.
Maryland is not the only State. Pennsylvania and Wisconsin have
demonstrated strong programs that are serious, flexible, and
successful.
On the issue of hydraulic fracturing, Colorado has shown it
can move two major changes to its rules on hydraulic fracturing
in a matter of months. Ohio has also jumped in to address
seismicity and other fracturing-related issues important to its
State. Even North Carolina, which has not fractured a single
gas well in the entire State, is moving legislation to place
restrictions on this practice. Back in Illinois, we are home to
the New Albany shale gas formation with a footprint that is
much of the southern part of the State and much of my
congressional district.
At the State level, they are quickly realizing the jobs and
positive economic impact of hydraulic fracturing and moving
steadily towards regulations. While this play is still
unproven, estimates of upward to 47,000 jobs annually and $9.5
billion of economic impact for Illinois if the New Albany shale
potential is realized.
It is well known that States, rather than the EPA, have
been dominating the regulatory space for hydraulic fracturing
for decades. When you consider the amount of additional
resources and new experiences that would be needed to infuse
into the EPA to replace what States already do well, it defies
conventional budgetary wisdom that this is a good public policy
move. I am not trying to suggest that the EPA does not have an
important role to play in protecting the environment, but when
you contrast the nimbleness and commitment of the States with
the cumbersome and lengthy process which characterizes U.S.
EPA's one-size-fits-all approach, trusting the States a little
more seems the right thing to do.
I know some of my colleagues here will dismiss these
arguments and suggest coal and gas need even more regulation
because they are, quote-unquote, ``dirty,'' and we need cleaner
fuels. I would submit to my colleagues that if this is really
about environmental protection and not energy use manipulation,
we must acknowledge that every fuel production method has risk.
On Monday, ABC News ran a story from the Associated Press
about the negative environmental externalities with solar
power. It read, Fueled partly by billions in government
incentives, the industry is creating millions of pounds of
polluted sludge and contaminated water. Companies must
transport it by truck or rail to waste facilities hundreds and
in some cases thousands of miles away. AP compiled a list of 41
solar makers in California, and based on State data, 24 of them
did not report their waste. The State records show that 17
companies, which had 44 manufacturing facilities in California,
produced 46.5 million pounds of sludge and contaminated water
from 2007 through the first half of 2011. Roughly 97 percent of
it was taken to hazardous waste facilities throughout the
State, but more than 1.5 million pounds were transported to
nine other States, and though it could be manifested, AP
reports 2.1 million tons are unaccounted. Even though EPA and
this administration are bullish on solar technologies, the same
level of Federal data does not exist.
I want to welcome the State officials who have joined us
today from across the country to share their experience,
perspective, and devotion to their States' environments. We
have representatives from State groundwater, drinking water,
oil and gas, solid, and hazardous waste offices as well as
their agency heads. We also have a State legislator and a city
council member.
I now yield to Mr. Tonko, our subcommittee's ranking
member, for his opening statement.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
I would like to welcome all the members of the subcommittee
to our first hearing in the 113th Congress. I want to say a
special welcome to our new Ranking Member, Mr. Tonko, as well
as our new Vice-Chair Dr. Gingrey and all our new Republican
and Democrat members.
Today's hearing focuses on the important role that states
play in environmental protection under current law.
This hearing will help raise awareness and set the stage
for future discussions we are going to have on environmental
protection. Many of us get caught up with what the U.S. EPA
thinks or what it can do and fail to focus on the states and
what they can and must do.
The states are by no means, ``junior regulators'' or the
minor leagues of environmental protection. Rather, their plate
is twice as full. To carry out federal environmental law,
states have a lot of delegated authority. But states also have
their own protective laws. Often, beyond anything the federal
government has asked.
State regulators have every bit the same educational
background, expertise, desire to protect the environment, and
sense of professionalism as any employee at EPA, with the added
bonus of actually living in the communities they are trying to
make safe. They intimately knowing the terrain being regulated.
Some people might suggest states lack the will to enforce
their laws or they are reluctant to pass anything serious. I
think that answer is not fair, and I think history shows the
states have generally acted first on matters before the federal
government has stepped in to do something.
In this fast-paced technology driven society; a static
regulatory regime cannot respond to innovations nor complex
problems and challenging geologies. Let me offer a few examples
of what I mean from issues familiar to our committee.
In the state of Maryland, there was a terrible coal ash
problem. The state did not sit by powerless. Rather, in
December 2008 the Maryland Department of the Environment issued
one of the more robust sets of coal ash rules in the country.
Maryland is not the only state, Pennsylvania and Wisconsin have
demonstrated strong programs that are serious, flexible, and
successful.
On the issue of hydraulic fracturing, Colorado has shown it
can move 2 major changes to its rules on hydraulic fracturing
in a matter of months. Ohio has also jumped in to address
seismicity and other fracturing-related issues important to its
state. Even North Carolina, which has not fractured a single
gas well in the entire state, is moving legislation to place
restrictions on this practice.
Back in Illinois, we are home to the New Albany shale gas
formation with a footprint that's much of the southern part of
the state. At the state level they are quickly realizing the
jobs and positive economic impact of hydraulic fracturing and
moving steadily towards regulations.
While this ``play'' is still unproven, estimates have
upwards of 47,000 jobs annually and $9.5 billion of economic
impact for Illinois if the New Albany Shale's potential is
realized.
It is well-known that the states, rather than EPA, have
been dominating the regulatory space for hydraulic fracturing
for decades. When you consider the amount of additional
resources and new experience that would need to be infused into
EPA to replace what states already do well, it defies
conventional budgetary wisdom that this is a good public policy
move.
I am not trying to suggest EPA does not have an important
role to play in protecting the environment, but when you
contrast the nimbleness and commitment of the states with the
cumbersome and lengthy process which characterizes US EPA's
one-size-fits-all approach, trusting the states a little more
seems the right thing to do.
I know some of my colleagues here will dismiss these
arguments and suggest coal and gas need even more regulation
because they are ``dirty'' and we need ``cleaner'' fuels. I
would submit to my colleagues that if this is really about
environmental protection--and not energy use manipulation, we
must acknowledge that every fuel production method has risks.
On Monday, ABC News ran a story from the Associated Press
above the negative environmental externalities with solar
power.
It read: Fueled partly by billions in government
incentives, the industry is creating ``millions of pounds of
polluted sludge and contaminated water.''
``Companies must transport it by truck or rail to waste
facilities hundreds and, in some cases, thousands of miles
away.
AP compiled a list of the top 41 solar makers in CA, and
based on state data, 24 of them did not report their waste. The
state records show the 17 companies, which had 44 manufacturing
facilities in California, produced 46.5 million pounds of
sludge and contaminated water from 2007 through the first half
of 2011. Roughly 97 percent of it was taken to hazardous waste
facilities throughout the state, but more than 1.4 million
pounds were transported to nine other states. And, though it
could be manifested, AP reports 2.1 million tons are
unaccounted.
Even though EPA and this administration are bullish on
solar technologies, the same level of federal data does not
exist.
I want to welcome the state officials who have joined us
today from across the country to share their experience,
perspective, and devotion to their states' environments. We
have representatives from state groundwater, drinking water,
oil and gas, and solid and hazardous wastes offices as well as
their agency heads. We also have a state legislator and a city
council member.
I now yield to Mr. Tonko, our subcommittee's ranking member
for his opening statement.
# # #
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Mr. Chair, and it is a pleasure to
join with you, Chairman Shimkus, and our expert witnesses, who
will share their thoughts with us this morning. Thank you to
the entire panel for making the effort, and to join with the
ranker of our committee, with Ranker Waxman and our team, and
all of the members of the subcommittee. While we will not
always be in agreement, I hope that we can find common ground
to move this Nation forward on important issues in the
jurisdiction of this committee, this subcommittee.
Today's hearing revisits an issue that we have been
discussing since the day of the 13 original colonies deciding
to band together and declare their independence from Great
Britain. Over the years, we have continued to struggle to
define the proper balance between Federal and State regulation.
I expect we will continue to debate this for many years to
come. Each one of the individual States we represent is
different, to be sure, and the States have a responsibility to
their citizens to manage their resources and their economies,
but we know that from our Nation's history, decisions made in
one State often have impacts beyond that particular State's
borders. Just as we have State laws to ensure consistency among
the towns, villages, counties, and regions within States,
Federal law guarantees minimum standards for all of our
Nation's citizens. They promote good relations amongst
neighboring States, and they ensure that shared resources--
water, air, land, forests, wildlife, and fisheries to name a
few--remain viable and available for everyone's beneficial use.
The environment of any one State does not fit discreetly
within its political boundaries. New York, my home State,
shares its borders with five other States and with the Nation
of Canada. We share our watersheds and airsheds with an
additional six States. While New York has strong environmental
protections, our environment is not only dependent upon how New
York State manages its resources. It also depends upon the
choices made by those other neighboring States in our region
and by Canada.
The system we have today was put in place largely as a
result of the experience we had prior to the adoption of sound
Federal environmental laws. That experience was not good. It
involved polluted surface and groundwater, acid rain, smog,
soil erosion, and collapsed fisheries as a result of a States-
only approach to environmental protection. Most of these
environmental problems have been reduced significantly by
Federal laws implemented in cooperation with the States.
I would also point out that we have accomplished these
environmental success stories while our population and economy
grew. We do not have to choose between a healthy environment
and a healthy economy. Indeed, one complements the other, and
we know that public health is not a luxury; it is indeed a
necessity.
Just last month, a number of reports appeared about the
terrible pollution problems in China, problems that are now too
large to ignore. The result is increased hospitalizations and
emergency shutdowns of some factories. The Chinese are
discovering what we learned a long time ago: Unfettered
industrial activity results in widespread serious pollution
that does, indeed, impact public health and the economy.
Clean air, clean water, and healthy soils are fundamental
building blocks of a sound economy and a healthy society. With
creativity and willing partners in the private sector, we can
do even better. We do not want to go backward. Forward is our
only direction.
Pollution prevention is always less costly than pollution
cleanup. Our laws are not perfect, and their implementation is
not perfect, but the public is well served by them, and we
should be working to improve and strengthen them for the sake
of public health and resource protection.
Every citizen in this Nation deserves to live in a
community with clean air and clean water. Federal and State
partnership in this effort has made this guarantee a reality
and delivered real results. We should build on this success to
address new challenges, like climate change. Now is not the
time to reverse course.
I look forward to hearing from our witnesses, expert that
they are, this morning.
Thank you all for agreeing to appear before our
subcommittee today.
And again thank you, Mr. Chairman. I look forward to
working with you and our fellow committee members, subcommittee
members.
Mr. Shimkus. Thank you, Mr. Tonko.
And I look forward to working with you, too.
Now I would like to yield to the chairman of the full
committee, Mr. Upton, for 5 minutes.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Thank you, Mr. Chairman.
You know, we are eager to better understand the role of the
States in conserving resources and protecting the health of
their residents.
And it is a special pleasure to see Hal Fitch, who manages
Michigan's DEQ's Office of Oil, Gas and Minerals. Welcome.
Effective regulatory management of resource development is
crucial. Excess restrictions cost jobs and revenue, but
inadequate oversight and regulation could turn a State's
residents against resource development. So we have got to
strike the right regulatory balance.
Most agree that for policy decisions to be fair, they have
to be made at the appropriate level of government, but what is
that level? It is the one closest to the people but still has
enough authority to carry out the policy. If the decision
affects only folks in Kalamazoo, it should be made by the
Kalamazoo City Commission. If it also affects others in
Michigan, it ought to be made by State officials. Only those
policies that impact citizens from more than one State should
be made by the Federal Government.
Today's hearing gives us a chance to see environmental
protection through the eyes of State officials. We are going to
see firsthand that they, A, care about the environments in
which they live and work; B, have professional experience and
local expertise; C, seek the right balance between
environmental protection and economic opportunity; and, lastly,
take seriously their legal obligations under both State and
Federal law. It is important to understand the important roles
States play in protecting the environment, and that is what
this hearing is about.
And I yield to my friend, Mr. Barton.
[The prepared statement of Mr. Upton follows:]
Prepared statement of Hon. Fred Upton
We are eager to better understand the role of the states in
conserving resources and protecting the health of their
residents. It's a special pleasure to see Hal Fitch, who
manages the Michigan DEQ's Office of Oil, Gas, and Minerals.
Effective regulatory management of resource development is
crucial. Excess restrictions costs jobs and revenue, but
inadequate oversight and regulation could turn a state's
residents against resource development. We must strike the
right regulatory balance.
Most people agree that for policy decisions to be fair,
they must be made at the appropriate level of government. But
what is that level? It's the one closest to the people but
still has enough authority to carry out the policy. If the
decision affects only people in Kalamazoo, it should be made by
the Kalamazoo City Commission; if it also affects others in
Michigan, it should be made by state officials. Only those
policies that impact citizens from more than one state should
be made by the federal government.
Today's hearing gives us a chance to see environmental
protection through the eyes of state officials. We will see
first-hand that they:
Care about the environments in which they live and
work;
Have professional experience and local expertise;
Seek the right balance between environmental
protection and economic opportunity; and
Take seriously their legal obligations under both
state and federal law.
It is important to understand the important role states
play in protecting the environment. One thing wealready know is
that Washington does not always know best.
# # #
OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Barton. Thank you, Chairman.
And I first want to put to bed the rumor that I would not
attend an early morning hearing on a getaway day. Staff seemed
to think that I wouldn't show up. I want the record to show the
only two members here ahead of me were the subcommittee
chairman and the ranking member. They were here when I arrived.
So I can show up in the morning, although I will admit there
have been times that I have not.
I do appreciate this first hearing of this subcommittee
being on this issue. I think we have a great panel of witnesses
from around the country. When I was chairman of this committee
back in 2005, we passed the Energy Policy Act, and in that, we
revised the Safe Drinking Water Act to state as follows:
Underground injection, to exclude the term underground
injection, the underground injection of fluids or propping
agents pursuant to hydraulic fracturing operations related to
oil, gas, or geothermal production activities. In other words,
we said that the Federal Government could not regulate those. I
think that is the best way to do it.
In my home State of Texas, in my congressional district,
there are over 16,000 producing wells that have been
hydraulically fractured and horizontally drilled. In the
largest county that I represent, Tarrant County, which is an
urban-suburban county, the number of mineral property owners
went from 500 in the mid 1990s to today well over 100,000. This
has been done without affecting the environment in any shape,
form or fashion, other than the normal issues you have with
noise and dust and trucks and things like that when you drill
or have any kind of a commercial activity.
I think the ranking member's statement from New York State
is dead on in the sense that, comparing his State and my State,
Texas has chosen to regulate hydraulic fracturing, but to allow
it. His State so far has chosen not to. I don't have a problem
with that. I do predict over time, his home State of New York
may decide, in fact, that it may be well to do it in certain
shapes, forms or fashions.
With that, I would like to yield to Dr. Gingrey for 2
minutes.
[The prepared statement of Mr. Barton follows:]
Prepared statement of Hon. Joe Barton
Thank you Chairman Shimkus for holding this hearing. My
home state of Texas has been and is currently capable, active,
and effective in protecting the environment and public health
of Texans. I find it disingenuous for the Federal Government
and in particular the Environmental Protection Agency (EPA) and
the Department of Energy (DOE) to think that they are the only
ones that can do this effectively. The same is true of the
other states that sent governmental representatives here today
to testify.
The recognition that it is the states rather than the feds
that can best regulate their domestic oil and gas productions,
especially when it comes to emerging and innovative
technologies, was spelled out in the Energy Policy Act of 2005,
which passed through this Committee when I was Chairman. Back
then, this Committee recognized the importance of hydraulic
fracturing and expressly revised the Safe Drinking Water Act
term ``underground injection'' to exclude ``the underground
injection of fluids or propping agents pursuant to hydraulic
fracturing operations related to oil, gas, or geothermal
production activities.''
There is a company in my district and several other
companies in Texas that are investing in researching reduced or
waterless fracking technologies. This kind of innovation should
be encouraged by local and federal agencies and these agencies
should maintain oversight throughout the process so they
understand the environmental and public health impacts instead
of guessing at them.
Mr. Gingrey. And I thank the gentleman for yielding.
Mr. Chairman, I want to thank you for calling this hearing
today on the role the States play in implementing our Federal
environmental laws.
I also would like to welcome our panel of witnesses that
will provide the subcommittee with its collective wealth of
knowledge on how they implement the various Federal laws,
Federal and State laws.
Today's hearing is my first as vice chair of this
subcommittee, and today's hearing is a great example of the
broad jurisdiction that we have. Mr. Chairman, I look forward
to working with you and the other members of this subcommittee
on both sides of the aisle, the ranking member Mr. Tonko, my
good friend from New York, during this Congress to address the
important environmental issues that will have a significant
impact on the American people. We will examine spent nuclear
fuel and its long-term storage with the hopes of finally
turning the use of Yucca Mountain into a reality.
During the 113th Congress, this subcommittee will also
study the benefits of hydraulic fracturing in our domestic
energy production.
Mr. Chairman, I stand ready to work and I look forward to
providing solutions for the policy areas under our jurisdiction
on this subcommittee.
Today's hearing provides a strong starting point for the
subcommittee for the 113th Congress, and I believe that we will
learn a great deal from our panel today that will help guide us
throughout the next 2 years, and I yield back.
Mr. Shimkus. The gentleman yields back his time.
The chair now recognizes the ranking member of the full
committee, Mr. Waxman, for 5 minutes.
OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Waxman. Thank you, Mr. Chairman.
I congratulate you on this hearing and taking over this
chairmanship.
And I want to recognize our ranking member on the
subcommittee as well. We look forward to working on a
bipartisan basis to get things done.
This hearing is to examine the way Federal and State
regulators work together to protect public health and the
environment. Over the years, the Federal Environmental
Protection Agency and the States have developed a proven model
that has successfully reduced air pollution and ensured the
public's access to safe drinking water.
Under this model, EPA sets minimum standards that States
can exceed if they so choose. Implementation can be delegated
to States on the showing that they have requirements in place
that are at least as stringent as the Federal floor. Even then,
EPA retains backstop enforcement authority to ensure that every
citizen in the United States is receiving a minimum level of
protection from environmental risks. EPA also plays an
essential role in supporting State implementation through
technical assistance, grants, and often loan funds as well.
As we will hear from the panel, this model has worked.
States have received delegation for over 96 percent of the
environmental programs that can be delegated. This is an
impressive track record, and even more so when you consider the
fact that this approach has offered protection to American
families from pollution that causes respiratory diseases, from
contaminants in their drinking water, and from toxic
environmental exposures that can cause cancers and other
diseases.
Despite these successes, there have been recent proposals
to abandon the proven models and abdicate responsibilities to
the States. One of the most immediate examples is the coal ash
legislation from the last Congress.
As we hear from State regulators about the good work they
are doing, we should be mindful of the serious threat the
sequester and the Republican budget pose to this proven model
of environmental protection. Without Federal technical
assistance and funding, States may be unable to maintain their
delegated programs. If the programs are handed back to EPA, EPA
may not have the resources to take on this added
implementation. The transition between State and Federal
programs may create costs for regulated entities and
uncertainty for industry. And worst of all, bad actors may see
opportunities to shirk environmental regulations, because of
the lack of enforcement resources.
According to EPA, if sequestration goes into effect, there
will be nearly 300 fewer cleanups under the leaking underground
storage tank program. There could be a thousand fewer
inspections to protect communities from toxic air pollution and
other pollution that could can cause illness and death. And
essential services to industry, like EPA's certification of
auto engines for emission standards, could be curtailed.
Budget cuts that undermine implementation of our
environmental statutes are penny wise and pound foolish. I hope
my colleagues will listen closely to the testimony we hear
today and bear it in mind as we consider sequestration, which
is to take effect just a couple weeks from now, and EPA's
budget in the coming weeks.
So I thank you for this hearing and look forward to the
testimony.
I would be happy to yield to any of my colleagues.
Ms. Schakowsky, I yield to you the balance of my time.
[The prepared statement of Mr. Waxman follows:]
Prepared statement of Hon. Henry A. Waxman
I thank the Chairman for calling this hearing so that we
can examine the way federal and state regulators work together
to protect public health and the environment. Over the years,
the federal Environmental Protection Agency (EPA) and the
states have developed a proven model that has successfully
reduced air pollution and ensured the public's access to safe
drinking water.
Under this model, EPA sets minimum standard that states can
exceed if they so choose. Implementation can be delegated to
states on a showing that they have requirements in place that
are at least as stringent as the federal floor. Even then, EPA
retains backstop enforcement authority to ensure that every
citizen in the United States is receiving a minimum level of
protection from environmental risks. EPA also plays an
essential role in supporting state implementation through
technical assistance, grants, and often loan funds as well.
As we will hear from the panel, this model has worked.
States have received delegation for over 96% of the
environmental programs that can be delegated. This is an
impressive track record, and even more so when you consider the
fact that this approach has offered protection to American
families from pollution that causes respiratory diseases, from
contaminants in their drinking water, and from toxic
environmental exposures that can cause cancers and other
diseases.
Despite these successes, there have been recent proposals
to abandon the proven models and abdicate responsibilities to
the states. One of the most immediate examples is the coal ash
legislation from last Congress.
As we hear from state regulators about the good work they
are doing, we should be mindful of the serious threat the
sequester and the Republican budget pose to this proven model
of environmental protection. Without federal technical
assistance and funding, states may be unable to maintain their
delegated programs. If the programs are handed back to EPA, EPA
may not have the resources to take on this added
implementation. The transition between state and federal
programs may create costs for regulated entities and
uncertainty for industry. And worst of all, bad actors may see
opportunities to shirk environmental regulations, because of
the lack of enforcement resources.
According to EPA, if sequestration goes into effect, there
will be nearly 300 fewer cleanups under the leaking underground
storage tank program. There could be a 1,000 fewer inspections
to protect communities from toxic air pollution and other
pollution that can cause illnesses and death. And essential
services to industry like EPA's certification of auto engines
for emissions standards could be curtailed.
Budget cuts that undermine implementation of our
environmental statutes are penny wise and pound foolish. I hope
my colleagues will listen closely to the testimony we hear
today and bear it in mind as we consider sequestration and
EPA's budget in the coming weeks.
OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Ms. Schakowsky. I thank the gentleman for yielding, and I
appreciate this hearing.
An overarching theme of today's hearing will be the role of
States in monitoring and enforcing regulations over the process
of hydraulic fracturing, I suspect. I am principally concerned
about the environmental impacts of hydraulic fracturing.
According to Cornell University president Robert Howarth,
3.6 to 7.9 percent of the methane from shale gas production
which, results from fracturing, escapes to the atmosphere in
venting and leaks over the lifetime of a well, that was a
quote. The study claims that this represents a 30 to 100
percent increase over conventional gas production. The impact
of that methane pollution could be more impactful on greenhouse
gas emissions than on the burning of oil.
Concerns about the impact of hydraulic fracturing on water
are well documented. Reports have been filed in more than 10
States about water contamination that occurred shortly after
hydraulic fracturing commenced.
I just want to point out that last month the EPA announced
its third delay in its investigation into water contamination
that the residents of Pavillion, Wyoming, believe is connected
to hydraulic fracturing. We need to make sure that the EPA does
follow up and examine the cause of contamination of drinking
water.
And I yield back.
Thank you.
[The prepared statement of Ms. Schakowsky follows:]
Prepared statement of Hon. Janice D. Schakowsky
Thank you, Chairman Shimkus, for holding today's hearing
about the role of states in protecting our environment. This is
an important topic, and I'm glad to start this congress on such
a critical issue.
An overarching theme of today's hearing will be the role of
the states in monitoring and enforcing regulations over the
process of hydraulic fracturing. I am principally concerned
about the environmental impacts of hydraulic fracturing.
According to Cornell University Professor Robert Howarth,
``3.6% to 7.9% of the methane from shale-gas production
(resulting from hydraulic fracturing) escapes to the atmosphere
in venting and leaks over the lifetime of a well.'' The study
claims that this represents a 30& 100% increase over
conventional gas production. The impact of that methane
pollution could be more impactful on greenhouse gas emissions
than the burning of oil.
Concerns about the impact of hydraulic fracturing on water
are well-documented. Reports have been filed in more than 10
states about water contamination that occurred shortly after
hydraulic fracturing commenced. A well-funded EPA would enable
faster investigation and action in the case of water
contamination across the country.
Last month, the EPA announced its 3rd delay in its
investigation into water contamination that residents of
Pavillion, Wyoming believe is connected to Hydraulic
Fracturing. I sent a letter, along with 20 colleagues, to EPA
Administrator Lisa Jackson voicing our concern about the
delays--which have now stretched over a year--and reiterating
the need to examine and rule on the cause of contamination of
drinking water.
Again, thank you for holding today's important hearing. I
look forward to the testimony of our witnesses.
Mr. Shimkus. The gentlelady yields back her time.
Again, thank all members for their attendance.
And now I would like to turn to our panel. Thank you for
being patient.
We are going to go left to right, and I am just--for the
sake of time, I am just going to--I usually do a whole
introduction, but I am just going to go straight. We are just
going to run into this.
So, first, let me welcome Mr. Harold Fitch, who is
supervisor of the mineral wells and chief, Office of Oil, Gas,
and Minerals for Michigan Department of Environmental Quality.
Sir, your full statement is in the record, you have 5
minutes, and you are now recognized.
STATEMENTS OF HAROLD R. FITCH, SUPERVISOR OF MINERAL WELLS, AND
CHIEF, OFFICE OF OIL, GAS AND MINERALS, MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY; MATTHEW J. LEPORE, DIRECTOR, COLORADO
OIL AND GAS CONSERVATION COMMISSION; SARAH PILLSBURY,
ADMINISTRATOR, DRINKING WATER AND GROUNDWATER BUREAU, NEW
HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES; JEFFERY STEERS,
DIRECTOR, LAND PROTECTION AND REVITALIZATION DIVISION, VIRGINIA
DEPARTMENT OF ENVIRONMENTAL QUALITY; TERESA MARKS, DIRECTOR,
ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY; THE HONORABLE
PRICEY HARRISON, NORTH CAROLINA HOUSE OF REPRESENTATIVES; AND
THE HONORABLE MICHAEL A. SESMA, COUNCIL VICE PRESIDENT, CITY OF
GAITHERSBURG, MARYLAND
STATEMENT OF HAROLD R. FITCH
Mr. Fitch. Thank you, Mr. Chairman and members of the
subcommittee.
I am Hal Fitch, as you heard. I am the State geologist of
Michigan as well as the director of our Office of Oil, Gas, and
Minerals. Our office is charged with regulating oil and gas and
mining in Michigan. I am here today on behalf of the Interstate
Oil and Gas Compact Commission. I am also a member of the board
of directors of the Groundwater Protection Council, which you
are going to hear from in just a minute.
The IOGCC is an organization chartered by Congress that
represents the Governors of 38 States. Its mission is to
promote the conservation and efficient recovery of domestic oil
and gas, while protecting health, safety, and the environment.
Thank you for the opportunity to be here this morning.
I want to talk briefly about the regulatory structure and
processes in Michigan, recognizing that Michigan is typical of
many of our sister States in many respects, and we are also
unique; each State is unique. And I want to talk about IOGCC's
role in assisting the States in coordinating their efforts. The
States have a long and successful history of regulating oil and
gas operations. The States recognized the need, in fact, to
protect the environment while at the same time fostering
orderly development of oil and gas decades before the beginning
of the modern environmental movement.
Michigan's regulatory structure is typical of our sister
States. We oversee well drawing and production from cradle to
grave, and we also cover injection wells that are associated
with oil and gas operations. We have a staff of about 60
people, comprised of geologists, engineers, attorneys,
enforcement specialists, and administrative support staff.
Michigan has had over 60,000 oil and gas wells drilled starting
back in the 1920s. We currently have about 19,000 wells active.
My agency's oversight starts with issuance of permits and
administration of our rules. They cover well drilling and
construction to assure that oil and gas and by-products are
contained within the well bore. If a well is productive, we
regulate production rates, surface equipment, and environmental
monitoring. Our staff conduct regular inspections over the life
of a well, and we prescribe how a well has to be plugged and
the site restored at the end of its productive life. Last year,
we conducted over 17,000 field inspections.
My agency enforces strict requirements for spill
prevention, containment, cleanup and reporting. We monitor air
and water emissions to assure compliance with State and Federal
standards. Finally, we have dedicated funding to plug wells in
the event that the operator isn't solvent or enters into
bankruptcy so that the State can take care of that well and
plug it properly.
State oil and gas statutes, regulations, and administrative
procedures are tailored to the legal structure and doctrines,
environmental conditions, geology, topography, climate, and
community sensitivities that are specific to each State. In
addition, our regulatory staff must have highly specialized
backgrounds and expertise in well drilling, oil and gas
production, law enforcement, and property rights as they apply
in each specific State. A one-size-fits-all Federal approach
would not be as effective or efficient in accommodating those
unique issues.
Hydraulic fracturing is an example of the adaptability of
State regulations in addressing emerging technologies. Michigan
has had over 12,000 wells hydraulically fractured, starting
back in 1952. We have not had one incident of environmental
contamination related to hydraulic fracturing. In talking to my
counterparts in other States, they have the same conclusion.
None of us have seen a direct impact or direct contamination of
groundwater from hydraulic fracturing. There are some other
issues associated with it that have to be managed properly. One
of those is management of wastewater, the flow-back water that
comes back out of the well. Another one is the increased water
withdrawals that are necessary for large-scale fracturing which
we are seeing in recent years.
Michigan issued special requirements for evaluation of
water withdrawals. We use a Web-based assessment tool, and we
issued requirements for monitoring and reporting of hydraulic
fracturing operations. We have also begun posting chemical
additive reports on our Web site. Oil and gas agencies in other
States have taken similar steps to address those same issues.
While we are unique, we also--States also have elements in
common with each other, and that is where the IOGCC and
Groundwater Protection Council come in. They are very effective
in helping us to coordinate our efforts and increase our
effectiveness. The IOGCC provides a forum for States to share
ideas, it has a training program, provides model statutes,
coordination, and they have an inspector certification program.
Groundwater Protection Council developed FracFocus in
cooperation with the IOGCC, the nationwide Web-based registry
for reporting of chemicals used in hydraulic fracturing. It is
used by 10 States currently. We also, the IOGCC, supports
underground injection peer-review program; the RBDMS, risk-
based data management system, and we are evaluating the use of
that RBDMS to help provide information to the Energy
Information Administration.
Mr. Shimkus. Mr. Fitch, if you can just sum up real
quickly. We are going to have time for questions, so I think we
will be able to----
Mr. Fitch. That is all I have to say. Thank you very much.
[The prepared statement of Mr. Fitch follows:]
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Mr. Shimkus. Thank you.
I would now like to turn to my colleague and friend Diana
DeGette from Colorado to introduce our next member of the
panel.
Ms. DeGette. Mr. Chairman, I am really happy to welcome
Matthew Lepore from Colorado. He is the director of the
Colorado Oil and Gas Conservation Commission, relatively new to
that post, and he has been very busy since he got there. We
have had two rule changes, and he is working hard to implement
all of the rules.
Colorado has a really innovative way that we are trying to
grapple with this new oil and gas development, particularly
hydraulic fracturing. The Oil and Gas Commission has been
working with a coalition that includes environmentalists as
well as the industry. While I don't always agree 100 percent
with all the rules they are promulgating, I think they are
working hard, and I think he is a great witness to the high
standard that some States like Colorado, of course, has always
had.
So thank you for coming, Mr. Lepore. We are looking forward
to hearing your testimony.
STATEMENT OF MATTHEW J. LEPORE
Mr. Lepore. Thank you very much, Mr. Chairman.
Thank you very much, Ms. DeGette, I appreciate that a great
deal.
I am pleased to be here to provide our perspective on how
the State of Colorado regulates oil and gas exploration and
production to develop our important indigenous resources
responsibly and in a manner that protects our environmental
resources.
I am here today on behalf of both the State of Colorado and
the Groundwater Protection Council. The Groundwater Protection
Council was formed in 1983. It has 43 member States, and its
purpose is to--its members include organizations of
environmental underground injection control, source water,
groundwater, and oil and gas regulatory agencies. GWPC promotes
the use of best practices and fair but effective laws regarding
comprehensive groundwater protection. Among many other projects
intended to protect groundwater, GWPC, in conjunction with the
Interstate Oil and Gas Compact Commission, manages FracFocus,
the national hydraulic fracturing chemical registry, which I
will discuss in greater detail below.
Colorado has a very long history of oil and gas production.
Our first well was drilled in 1862. It was one of the first
wells in the country. Today we have 50,265 active oil and gas
wells. We add about 2,000 a year and will continue to do so for
the foreseeable future. In 2012, we produced a record-breaking,
for Colorado, 47 million barrels of oil. At the same time, we
have a thriving resort and tourist economy. Our rugged
mountains, clear streams, and abundant wildlife are an
essential part of our heritage.
I would like to focus for just a minute or two on some of
the rules that Colorado has adopted, specifically in the last
15 months. Starting in December 2011, Colorado adopted the most
progressive frack fluid chemical disclosure rule in the country
up to that time. It requires operators to disclose all of the
chemicals used in their frack fluid. All those chemicals are
posted on FracFocus and are available for public review.
Colorado's rule has been imitated by several States, including
Pennsylvania, Ohio, and Tennessee, and much of BLM's proposed
regulation looks to Colorado for a model.
In January of this year, last month, we adopted a
groundwater monitoring requirement. Beginning on May 1st all
new wells drilled in Colorado will be required, the operator
will be required to take a pre-drilling groundwater sample and
two post-drilling groundwater samples so that we can understand
what baseline conditions are and have an opportunity to see if
any drilling has impacted any of those groundwater resources.
And, finally, Monday of this week, although it seems much
longer ago, we adopted a rule setting new setback distances,
the distance between occupied buildings and wells, after about
a year-long stakeholder process.
My agency has 76 full-time employees dedicated to
protecting the environment and seeing that our resources are
responsibly developed. Many of those have advanced degrees,
including Ph.D.s, master's degrees, we have geochemists, we
have hydrologists, we have environmental specialists. There is
no one on my staff who is interested in seeing oil and gas
development adversely impact our environment.
In the limited time I have left, I would like to show you a
couple of pictures and talk about some of the tools that we use
to regulate efficiently, effectively, and transparently.
If you can go to the next slide for me, please. We have--
these are hard to see. This is an interactive map that is
available on our Web site, that is publicly accessible. This
map has 125 layers of information. What you are looking at
there is a picture of Weld County, Colorado, and all of the
wells in that particular section. You click on any one of those
links, you will find out everything you want to know about that
well, when it was drilled, how deep it is drilled, how it was
completed, how much production there has been, whether there
has been an inspection, a violation, an enforcement action.
If I could have the next slide please.
I am going to keep going, skip a couple, please. One more.
That is a production report. This is a FracFocus link. You can
get there directly from our Web site. Again, for any well in
the State, you can pull this up. If it was stimulated since the
rules became effective, you can find out what was used in the
frack stimulation fluid.
Next slide please. I want to go one more. Thank you.
This is what we call an e-form through GWPC. GWPC developed
for us an electronic form submittal and management system so
that an operator's permit to drill is submitted electronically,
and this is an inspection report. So we generate electronic
inspections, we send these to the operators directly.
Tremendously efficient and effective regulatory system
developed by GWPC for us.
My time is up. Thank you very much.
[The prepared statement of Mr. Lepore follows:]
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Mr. Shimkus. And I thank you. One of the things we did do
in the last Congress, do an e-manifest issue which I think was
a bipartisan bill that actually passed Congress, signed into
law, so we appreciate that.
Now representing the Association of State Drinking Water
Administrators, Sarah Pillsbury, who is the administrator,
Drinking Water and Groundwater Bureau of New Hampshire's
Department of Environmental Sciences.
Ma'am, welcome, you are recognized for 5 minutes.
STATEMENT OF SARAH PILLSBURY
Ms. Pillsbury. Great, thank you. And I don't have any
pictures, but every once in a while I will hold this up, just
to remind everybody how important public drinking water is.
I thank you very much for this opportunity to testify. I
represent the Association of State Drinking Water
Administrators, I am the current president, and our members
include the 50 States, the District of Columbia, five
territories, and the Navajo Nation.
State drinking water programs are fully committed to their
public health mission. States recognize that the health and
well-being of their citizens and communities are dependent on
receiving safe and reliable drinking water. It is important to
remember that the State drinking water program personnel live
and work in the communities served by the programs they
administer. It is personal to us.
State personnel are highly qualified to implement the
public drinking water programs. They fully understand the
multifaceted nature of the challenges they face and what is
needed to protect the sources of drinking water, adequately
treat those sources, and get good water to the tap. Our work is
especially challenging in light of extremely constrained
resources for the State drinking water programs.
State personnel also have the on-the-ground knowledge about
how to best tailor Federal programs to States' needs and
conditions. In brief, the key role of the State drinking water
programs are to inform water systems of what the requirements
are, make sure they have the capabilities to implement those
requirements and comply, and then giving ongoing oversight to
ensure that that compliance continues over time.
Turning to the EPA-State partnership, we believe it should
be and currently is one of mutual respect that allows each
partner to do what they do best. For EPA, this involves
establishing overarching national requirements along with
needed tools and information. States believe that the Federal
requirements need to be based upon State input so that
implementation is both possible and practical. For States, this
partnership entails implementing Federal requirements in a
manner consistent with local conditions and realities.
Two recent examples of where this partnering has really led
to great results, the first is the total coliform rule, the
revised total coliform rule, and the second is the agency's
decision to allow electronic distribution of our consumer
confidence report.
To appreciate the challenge of ensuring compliance with the
Safe Drinking Water Act, it is important to understand the
universe of water systems that the act covers, from restaurants
to manufactured housing parks to America's largest cities.
While most Americans receive their water from large
community water systems, most of the 53,000 community water
systems serve less than 3,300 people. In my State of New
Hampshire, of the 700 community water systems, 82 percent of
those serve less than 500 people. And those systems have to
meet basically the same requirement as my largest city. So
States must employ strategies for addressing systems of all
sizes and capabilities.
In addition, States are challenged by complex regulations,
many of which are risk-based and system-specific. That is
really a good thing in terms of the water that gets delivered,
but it can be challenging to implement.
Finally, we are challenged by an ever-increasing number of
emerging contaminants and the need to work with our partners on
protecting the sources of drinking water.
Certainly, one of the most multifaceted source-protection
challenges currently is the rapid expansion of hydrofracturing
to extract oil and gas. We understand that State oil and gas
programs have been working diligently to provide needed
oversight of these activities. We await the results of EPA's
studies to help shed light on the relationship between
hydraulic fracturing and the sources of our drinking water and
whether additional support of the States is necessary.
One last programmatic responsibility worthy of mention is
the need for States to continue their work on emergency
preparedness and response, whether the emergency is rooted in
terrorism, vandalism, natural disasters, or cyber intrusions is
the latest.
As I mentioned earlier, State drinking water programs are
constrained by lack of resources. State budgets are under
extreme pressure and are unable, often, to bridge the gap
between the currently inadequate Federal funding and the amount
of funds that is actually necessary to implement the Federal
requirements.
The Public Water Supply Supervision grant is the primary,
and in some cases the only, Federal funding source for the
State. It has been flatlined at roughly $100 million for
several years, whereas about twice that is needed. And we
understand that this subcommittee has no jurisdiction over
appropriations, but we believe that you are key and that your
support is key to get that funding increased to where it needs
to be to be adequate.
So, in summary, States are doing a remarkable job, all
things considered, and are carefully setting priorities to help
ensure that public health protection remains preeminent. A
strong drinking water program supported by the Federal-State
partnership and adequately funded by Congress will ensure that
the quality of drinking water in this country remains safe, no
matter where we live or work or play.
Thank you.
Mr. Shimkus. Thank you.
[The prepared statement of Ms. Pillsbury follows:]
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Mr. Shimkus. Now I would like to recognize Mr. Jeffrey
Steers. He is here on behalf of the Association of State and
Territorial Solid Waste Management Officials. He works as the
director of the Land Protection and Revitalization Division for
the Virginia Department of Environmental Quality.
Sir, welcome. And you are recognized for 5 minutes.
STATEMENT OF JEFFERY STEERS
Mr. Steers. Good morning. And thank you, Chairman Shimkus
and members of the subcommittee, for allowing me the
opportunity to testify this morning.
My name is Jeffrey Steers, and I am president of the
Association of State and Territorial Waste Management Officials
and am testifying on behalf of the organization. Our
association represents the waste management and remediation
programs of the 50 States, 5 territories, and the District of
Columbia.
I would like to preface my remarks by commenting that our
organization has a positive working relationship with U.S. EPA.
Our collaborative efforts and problem-solving should not be
underestimated. However, it is appropriate to have a
conversation about the role, the significant role, that States
play in regulating and protecting the environment, which is
oftentimes understated.
In implementing EPA's delegated programs, such as in the
hazardous waste and underground storage tank programs, States
develop regulatory programs and approve permits, conduct
inspections, provide compliance assistance, and, yes, take
appropriate enforcement action when necessary. Implementing
these programs, however, oftentimes involves duplication of
effort and resources. In carrying out our responsibilities
under these Federal programs, State management and cleanup
programs have identified opportunities to gain efficiencies and
work together to alleviate such duplicative energy.
To illustrate this point, I would like to provide three
examples: risk-based planning, area-wide approaches to
remediation, and leveraging resources in voluntary cleanup
programs.
Let me begin with the value of State-based risk planning
expertise. States are in a unique position to evaluate the
specific conditions of how those conditions relate to the
surrounding area. Having the knowledge and experience to assess
environmental population and economic factors associated with a
site make a risk-based approach to planning and prioritization
possible.
States are similarly better suited to assess risk and set
priorities on permitting of inspections for regulated
facilities. And the results thereby allow States to make better
use of their resources. The regional knowledge and experience
that the State environmental programs possess is vital in
establishing the requirements for the protection of our
citizens.
Two States recently completed a 3-year pilot project on the
benefits of a risk-based inspection planning strategy. Rather
than using traditional models of a one-size-fits-all approach
to targeting inspections, we looked at several opportunities to
target specifically those high-risk facilities where it may
have had poor performance in the compliance histories or are
located in environmentally sensitive areas.
The discoveries that we found through these pilot projects
included understanding that there were greater violations found
during inspections at the higher-risk facilities and the
opportunity for inspectors to work closer with the facilities
to improve compliance rates over time.
With respect to area-wide approaches to remediation, State-
specific knowledge and natural economic resources in
surrounding sites that are contaminated are particularly
beneficial for States. And they have the expertise to evaluate
how remediation at multiple sites can be integrated to an area-
wide approach.
The full advantage can be made of economic redevelopment
opportunities, and it affords the opportunity to evaluate and
recognize communities where they are often overburdened. It
offers a more holistic approach to site cleanup and
development.
For example, several States effectively leveraged resources
and brought parties to the table to address contaminated
properties and stream sediment using an area-wide approach. In
Ohio, two rivers within the Lake Erie Watershed, the Ottawa and
Ashtabula, are shining examples where Federal, State, local
governments, private parties, and nonprofit organizations
worked together using an area-wide approach to assess
contamination, develop implementation, remediation, and
restoration plans.
The State of Ohio was a driving force in collaborating,
using its knowledge of local issues and understanding of
economic and development interests to facilitate the investment
of over $50 million at dozens of sites and miles of
contaminated river. The result in that watershed included
restored habitat, creation of green spaces, and the
construction of a world-class auto assembly plant on land that
many had thought too blighted and contaminated to ever be
reused.
Regarding the leveraging of resources, States are able to
develop voluntary cleanup programs and, doing so, leverage
Federal funding to achieve results that benefit business,
create parks, and build community resources. Brownfield
programs are highly successful, due in large part to the
flexibility that can be achieved when business and developers
work together.
In Virginia, for example, in my home State, we leveraged
Federal brownfield grant funds and developed an economically
distressed area of Roanoke, Virginia. The State played a
critical role in bringing the parties together and creating
synergies that transformed 23 acres of blighted and
contaminated land into vibrant medical research facilities with
over $200 million in public and private investment.
The time-critical development project not only relied upon
the State to help bring the parties together, but it also
necessitated the use of flexible approaches in assessing and
remediating pollution on the property. Virginia's voluntary
cleanup program gave developers the certainty they needed with
respect to future liability and, thus, allowed for the private
funding of the project.
In conclusion, ASTSWMO's membership takes seriously its
responsibility to protect the environment and human health, and
we do so in the face of ongoing reductions in Federal budgets
and funding--a paradigm shift from Federal command and control
policies that limit the States' being able to carry out our
mission as needed. We will work continually to collaborate with
U.S. EPA and work with the local level at managing risk.
Thank you.
Mr. Shimkus. Thank you, Mr. Steers.
[The prepared statement of Mr. Steers follows:]
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Mr. Shimkus. I would now like to recognize Ms. Teresa
Marks, who is director of the Arkansas Department of
Environmental Quality, on behalf of the Environmental Council
of States.
Welcome, ma'am.
STATEMENT OF TERESA MARKS
Ms. Marks. Thank you, Mr. Chairman and members of the
committee. Thank you for inviting me here today to discuss the
role of State environmental agencies in protecting our Nation's
environment.
As the chairman told you, I am representing the
Environmental Council of States, or we refer to them as ECOS,
whose members are the leaders of the State and territorial
environmental protection agencies. I am the current president.
My comments are primarily directed at the Federal programs
enacted through legislation by Congress and administered by the
United States Environmental Protection Agency. These include,
for example, the Clean Air Act, the Clean Water Act, the Safe
Drinking Water Act, and the Resource Conservation and Recovery
Act. There are certainly other applicable statutes, but these
are the four that are most integral to our environmental
protection efforts.
EPA and the States each play a complementary role in
administering these laws. In general, EPA has oversight and
rule issuance authority, while the States implement the day-to-
day activities needed to ensure the programs are carried out on
the local level.
States obtain the authority to implement the Federal
programs from EPA through a delegation process. Delegation
occurs once for each program and is updated as new rules are
issued or changed.
Nearly every State has taken delegation of nearly every
such Federal program. As of 2013, ECOS and EPA agree that 100
percent of the Clean Air Act programs are delegated; all but
one State has the Safe Drinking Water program; all but two have
the RCRA or the hazardous waste program. There are still four
States that do not have delegation for the Clean Water Act
discharge permitting program. You can see that the States
assumed operation of a Federal environmental program in 193 out
of the possible 200 cases, or 96.5 percent of the time.
While operating these programs, the State agencies issue
permits, conduct inspections, monitor pollutants, conduct
enforcement, and work on many other related matters, such as
setting standards for watersheds. States conduct about 96
percent of the inspections at regulated facilities. Pursuant to
ECOS data, when violations are found, States conduct about 90
percent of the enforcement cases.
States are the source of about 94 percent of the data found
in EPA's six biggest air, water, and waste databases. The
States also review and issue nearly all of the water, air, and
waste permits across the Nation.
The States' implementation of the delegated programs
provides benefits to government, the regulated community, and
our citizens. States pay for the majority of the cost of
operating these delegated programs, thereby saving the Federal
Government millions of dollars. ECOS has no firm estimates of
the cost to the Federal Government if it were to operate these
programs, but we are confident it would be significantly
greater than the current EPA budget.
The operation of the environmental programs by the States
also provide for a more efficient and effective regulation of
environmental issues, in that the States are more familiar with
their regulated industries and they are located geographically
closer to them, thereby providing more timely compliance
assistance in response to citizen concerns and complaints. In
addition, States are generally able to provide a quicker
turnaround on permit issuance, renewal, and modification.
States contribute to our successes on environmental
protection in other key ways. We are often the first to see the
impacts of new pollution sources, and therefore we react
quickly. We often develop innovative ways to address
environmental challenges. We can sometimes tailor environmental
rules to fit local conditions. Some States may also implement
more stringent rules in cases where such a rule is needed to
protect a State resource that is not addressed in national
legislation.
Both ECOS and EPA understand that a cooperative
relationship is important to the successful implementation of
national environmental policies. States are coregulators with
EPA, and in addition to implementing the Federal laws, they
also implement their own State laws.
While States and EPA agree on how to address most matters,
our different roles mean that sometimes States and EPA see our
mutual challenges somewhat differently. Sometimes these views
are driven by concerns that more is being asked of the States
without the provision of new resources. Sometimes a State may
think an EPA-issued rule or policy would result in a
fundamental shift in the State-Federal relationship. We usually
work through these differences in a professional manner, and we
are usually successful in resolving them.
As mentioned previously, State environmental agencies are
coregulators with the U.S. Environmental Protection Agency.
Both agencies are key to our joint mission to protect human
health and the environment. I hope I have given you the
information you need to understand how vital the State role is
and how much we, as States, contribute to this joint mission.
Mr. Shimkus. Thank you very much, ma'am.
[The prepared statement of Ms. Marks follows:]
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Mr. Shimkus. And now I would like to recognize, on behalf
of the National Caucus of Environmental Legislators, the
Honorable Pricey Harrison. She is from the North Carolina House
of Representatives.
Ma'am, welcome. You are recognized for 5 minutes.
STATEMENT OF THE HONORABLE PRICEY HARRISON
Ms. Harrison. Thank you, Mr. Chairman and members of the
committee, for the opportunity to speak to you today.
I am Pricey Harrison, serving in my fifth term in the North
Carolina House. I am also here as a representative of the
National Caucus of Environmental Legislators. I am on their
board of directors. It is an organization of 850
environmentally progressive legislators from around the
country. It is a bipartisan organization.
On the topic of today's hearing regarding the States' role
in protecting the environment under current law, I think most
of us agree that the States play an important role.
My own State of North Carolina has had a tradition of
environmental leadership and passed landmark legislation in
2002 called the Clean Smokestacks Act that established an
ambitious timetable for reducing emissions from our coal-fired
power plants and allowed our utilities to stagger costs of
pollution-control technologies over a longer period while
keeping State rates low and providing significant health
benefits.
But the States can't do it alone. One only has to think
back to the Cuyahoga River on fire and cities cloaked in smog
as evidence of the inability of some States to protect the
public health and environment of their citizens. It was during
that time in 1970 that the National Environmental Policy Act
was passed and the EPA was established with overwhelming
bipartisan support. Other environmental measures were also
enacted, such as the Clean Water Act, the Clean Air Act, and
the Safe Drinking Water Act.
I think Congress recognized the importance of a Federal
role in providing a backstop of protection, especially in cases
where States are incapable, unable, or unwilling to act to
protect the public health and the environment. And, as
Congressman Tonko pointed out, we know pollution doesn't
observe political boundaries and we are all downwind or
downstream from pollution sources.
My testimony focuses on two areas where our State needs
help from the EPA and other Federal agencies, and that is coal
ash and hydraulic fracturing.
North Carolina ranks tenth in the country in coal ash
production. We have more high-hazard ponds than any other
State, yet we have a complete absence of State regulations for
safe disposal or containment of the sometimes toxic product. We
have no liner requirements for our ponds; no closure, siting,
or structural stability requirements; no reporting
requirements; no emergency action plans; no plans for dealing
with legacy ponds despite the fact that several coal-fired
power plants are converting to cleaner-burning natural gas. Our
lax regulation of coal ash has resulted in seepage and
exceedances of a variety of toxins, from arsenic to selenium to
boron to cadmium, and the list goes on.
I wish we were more like Maryland. I have tried for years
since the Kingston spill brought attention to the issue in our
State to enact legislation for safer regulation of coal ash and
haven't been able to even get a hearing, and that includes when
my party was in charge of State government. I think that
speaks, in part, to the enormous influence of the regulated
industries at the State legislatures, both through their
lobbies and campaign support. I think we are more vulnerable to
those pressures and less equipped to deal with them and the
complexities in many of these complicated environmental issues.
Regarding fracking, we are in a similar position. We have
had very little history of extractive industries in our State,
and, prior to last summer, fracking was prohibited. But we have
rushed to permit fracking and established the Mining and Energy
Commission and charged them with establishing rules over the
next 18 months. But our agencies are ill-equipped to do the
work needed to properly regulate and enforce natural-gas
drilling, and strong Federal oversight is needed.
It is a problem for us that the industry is exempted from
so many Federal protections. We have had a significant change
of leadership in our State in the past 2 years, and they seem
to be seized with an enthusiasm for deregulation. We have
undertaken a number of measures to weaken environmental
protections.
Legislation--and there was a chart included in your
handouts, and I am sorry I don't have a slide, but this is what
rulemaking is like in North Carolina now for environmental and
public health regulations. That legislation contained language
which is significant which prevents any State regulations from
being stronger than any Federal standard. And that means we are
completely dependent on the Federal Government for setting
standards to protect our public health and our environment.
Last week, the Senate passed legislation that wipes out the
membership of many of our environmental commissions as well as
our utilities commission and removes conflict-of-interest
restraints and designated seats for specialized and diverse
knowledge and experience. We have also had legislation that
will sunset all rules in our administrative code, and they will
have to be rejustified to be reenacted.
Budget issues have been challenging in North Carolina, as
well. We have slashed our Department of Environment's budget by
40 percent off of 2005-2006 levels, and our State is not alone
in this trend.
So I am here today to plead with you to let the EPA do its
job. Our State is not unique in its inability or intransigence
to protect the public health and environment of its citizens
from issues relating to coal ash and fracking. We need the
involvement of the Federal agencies. It is vital that the
Federal Government be allowed to establish at least minimal
standards of health and safety regulations to ensure effective
oversight of State agencies.
Thank you for the opportunity.
Mr. Shimkus. Thank you, ma'am.
[The prepared statement of Ms. Harrison follows:]
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Mr. Shimkus. And now I would like to recognize our last
member of the panel, not least, from the National League of
Cities, the Honorable Michael Sesma, who is a council vice
president, city of Gaithersburg, Maryland, and has some friends
in Edwardsville, Illinois, which is the county seat of my home
county. So I may be generous a few seconds with time.
So welcome.
STATEMENT OF THE HONORABLE MICHAEL A. SESMA
Mr. Sesma. I will probably need it. Thank you.
Good morning, Chairman Shimkus----
Mr. Shimkus. Extend your mike.
Mr. Sesma [continuing]. Ranking Member Tonko, and members
of the subcommittee. I am Michael Sesma, council member of the
city of Gaithersburg, Maryland.
Mr. Shimkus. Will you either pull it closer or make sure
the light is on?
Mr. Sesma. All right. The light is on. It is probably going
to count against my time.
Mr. Shimkus. It is starting to come now.
Mr. Sesma. All right. Thank you.
Mr. Shimkus. Just get a little bit closer, and I think we
will all be happy.
Mr. Sesma. OK.
I appreciate the opportunity to share our perspective. I am
here today on behalf of the National League of Cities, the
oldest and largest organization representing cities and towns
across America. I appreciate the opportunity to share our
perspective on the important role local governments play in
protecting the environment.
We have heard a lot about States this morning. States can't
do it without the cities being part of it. As implementers of
State and Federal environmental policies and programs and with
authority over local land use, zoning, and code development
decisions, cities and towns are key partners in ensuring that
the health, safety, and welfare of the public is protected.
Many local governments, including my city of Gaithersburg,
are at the forefront of sustainability and planning, taking
action to make our communities vibrant places to live, work,
and play. America's cities and towns serve as the first line of
defense and innovation for environmental protection. I would
like to highlight some of the approaches that Gaithersburg has
used as an example of the role cities and towns, urban and
rural, large and small, have in protecting the environment.
While not currently required by the Federal or State
government, the city of Gaithersburg has taken steps to
minimize storm-water runoff and encourage residents to be
active participants in protecting our watershed and public and
private property. We have a popular RainScapes program that
rebates rain barrel use and conservation landscaping to keep
our neighborhoods green and to prevent rainwater from running
into the storm drains.
We have constructed ``green streets'' to achieve the same
thing. We have been a Tree City USA since 1990, but
Gaithersburg is becoming more urban. As you know, urban forests
contribute significantly to energy conservation and overall
environmental quality.
So our forest conservation plan allows us to protect our
urban tree canopy even as we promote development throughout the
city. We try to replace every lost mature tree with a new tree.
In 2007, the city adopted a resolution requiring LEED
Silver certification for all future municipal buildings. We
were one of the first cities in the country to enact mandatory
green building requirements for both residential and commercial
development. Happily, there was no resistance from the
development community, and our approach has been good for
business. Green buildings are going up throughout the city.
And Gaithersburg has the first youth center in the United
States and the fourth building in Maryland to be certified LEED
Platinum by the USGBC.
Cities are committed to working in partnership with the EPA
to develop strategies and enact policies that enhance our
environmental resources and create viable communities for
future generations. These efforts are aided by several positive
steps that EPA has taken in recent years that strengthen the
Federal, State, and local partnership. I would like to touch on
three of these.
The first is the federalism consultation process. We thank
EPA for lowering the threshold for triggering the State and
local consultation process from a threshold of $100 million to
$25 million. Since lowering the threshold for triggering the
federalism consultation process, State and local governments
have been consulted on a more regular basis on issues of mutual
importance. And we firmly believe that early consultation will
lead to better results and strengthen the partnership between
Federal, State, and local government in achieving the
environmental goals of the EPA.
In regulatory review and reform, an Executive order calling
on Federal agencies to identify opportunities for reducing
administrative and regulatory burdens on local government has
saved cities money. As cities and towns continue to recover
from the economic downturn, every dollar counts, and this
flexibility is a welcome means of lessening the financial
burden on local governments.
Finally, EPA's integrated municipal storm-water and
wastewater planning approach planning approach framework and
the recent memorandum on assessing financial capability from
Municipal Green Water Act requirements serve as acknowledgment
that local governments face difficult financial conditions that
impact their ability to meet the Clean Water Act obligations.
By allowing an integrated planning approach, local governments,
not the agency, can decide how they will meet the CWA
requirements. This flexibility allows for better compliance,
better planning, and more efficient spending.
So cities and towns across the country continue to have
concerns about the affordability of meeting CWA requirements.
In Maryland, the implementation of storm-water management
programs has a direct impact on the quality of water in streams
and rivers that flow into the Chesapeake Bay. And a healthy,
clean Chesapeake Bay is vital to the economic health of the
mid-Atlantic States. While the CWA mandates may be necessary to
maintain and improve water quality, they come with high costs
to local governments and taxpayers.
For example, under our next permit cycle, Gaithersburg must
retrofit 20 percent of its impervious acreage at a cost that is
estimated to be about $127,000 per acre. And the projected cost
for Gaithersburg to do this over 576 acres is $73 million. Our
operating budget for fiscal year 2013 was $46 million.
Montgomery County in Maryland has a bigger problem. About 20
percent of their budget must be used--or a proportion of their
budget of $4.6 billion will be spent to retrofit their
impervious services before 2020.
So in response to local government concerns about
affordability and the fiscal impact of regulatory compliance,
EPA issued a memorandum on the fiscal burdens of compliance.
Local governments will continue to dialogue with EPA on
affordability. And we commend EPA for both the integrated
planning effort and local government affordability dialogue
that will serve to strengthen the intergovernmental
partnership.
However, this integrated planning framework can still be
improved, and we urge EPA to include drinking-water regulations
in the planning framework.
So I will just cut to the quick chase and the major reason
that we are here. And one is to call on Congress some support
existing and new financing mechanisms for funding water
infrastructure projects. Cities have been forced to contend
with significant decreases in intergovernmental revenue,
including Federal, State, and county aid, adding to the fiscal
problem.
Elected officials are making difficult decisions and
working hard to find innovative solutions to re-energize their
communities. And without the resources to do that, it will be
difficult to implement the objectives of the Safe Drinking
Water and the Clean Drinking Water Act. So there is a need for
new financing--for financing mechanisms.
As the administration and Congress seek to identify savings
and new revenue to reduce the deficit, the Federal income tax
exemption on interest paid on State and municipal bonds is
under threat. Tax-exempt municipal bonds are----
Mr. Shimkus. Mr. Sesma, I have been overly generous----
Mr. Sesma. Thank you.
Mr. Shimkus [continuing]. With a minute more than the
other----
Mr. Sesma. A minute more. Thank you.
Mr. Shimkus. No, no, no. I----
Mr. Sesma. Thank you. I end my remarks.
Mr. Shimkus. Thank you very much.
[The prepared statement of Mr. Sesma follows:]
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Mr. Shimkus. Now I would like to recognize myself for 5
minutes for questions. The first question to goes to Mr. Fitch.
Please explain the Risk-Based Data Management System. And
can you give me a specific example of how this tool aids in the
regulatory effort?
Mr. Fitch. The Risk-Based Data Management System is a kind
of a common platform that is used by many of the oil- and gas-
producing States. We enter all of our data into it, all the
information on individual wells, the drilling, construction,
production history. And it can be linked to other records
associated with the well. It helps us to manage our internal
data, and it also is a good portal for public or industry, any
interested party, to access that data.
Mr. Shimkus. Thank you.
And, Mr. Lepore, how did the Risk-Data Management System
help you manage the delicate balance between water and energy?
Mr. Lepore.Mr. Chairman, as Mr. Fitch alluded to, the RBDMS
allows us to track a vast amount of information, tie that
information to specific wells, search that information, keep
that information publicly available. So I guess all of those
tools combined can be used by someone looking to that energy-
water balance as they want to use that information.
Mr. Shimkus. And is water data shared across State lines?
Mr. Lepore. It certainly can be. One of the slides that I
didn't have time to show you is we have an environmental
database now that went live in September of 2012. Go to that
database, click on a well, you can find out everything there is
to know about that particular groundwater well. Again, fully
publicly accessible, so it could be shared across State lines.
Mr. Shimkus. Ms. Pillsbury, do you agree? Do you agree with
the comments of Mr. Lepore?
Ms. Pillsbury. That we are able to get information from
other States about water and water quality? Yes, I agree with
that.
Mr. Shimkus. Great. Thank you.
Mr. Steers, do you believe that with the Federal standards
set by Congress in statute rather, than set by the EPA, that
you could establish, implement, and enforce a permit program
that meets the requisite level of protection established by the
Federal Government?
Mr. Steers. Mr. Chairman, yes, I do believe the States are
capable. We have a significant history over the last 20 to 30
years of permitting and implementing standards and using the
flexibilities and understanding local conditions on how we
apply permitting program across the Nation.
Mr. Shimkus. And, Ms. Marks, if EPA has authority to take
over control of a State permit program when the permit program
isn't meeting a minimum Federal standard, would you consider
that backstop authority for the EPA?
Ms. Marks. Yes. I do think that is a backstop authority.
And it is rarely exercised. Fortunately, it hasn't had to be.
Mr. Shimkus. And going back to Ms. Pillsbury, your
testimony talks about other partnerships for training and
technical assistance. Could you please discuss these and what
are you trying to obtain from them? And how do you think they
will help your members with the mission?
Ms. Pillsbury. Sure. On both the national organization and
State level, two of the big partners are the National World
Water Association and the Community Assistance Program. And
they basically put boots on the ground to help water systems
obtain financing, meet compliance, those kinds of things.
In addition to that, up until pretty recently, there were
both finance centers and technical centers that EPA sponsored.
And for us in New Hampshire, arsenic was a huge issue, and that
technical center at University of New Hampshire was critical in
figuring out what was the least-cost way to these small,
struggling systems to meet arsenic compliance.
Mr. Shimkus. And I am going to wrap up. I appreciate the
testimony. I think it is a very good panel.
I think it is safe to say that the States, you know, are
doing most of the work. I am a former infantryman, so I would
call you the boots on the ground and the infantry of protecting
our citizens and their air quality and their environment and
the like. And I want to thank you for your service.
And I yield to the ranking member, Mr. Tonko, for 5
minutes.
Mr. Tonko. Thank you, Mr. Chair.
And I heard a number of concerns about financing, about
funding streams from the Federal level. Over 40 percent of
EPA's budget is typically passed through the agency to the
States to make their work possible. And, according to EPA, 75
percent of that volume of its State cleanup grants and 80
percent of its State prevention grants support the salaries of
State staff, so that that could mean huge cuts and losses at
your important State agency level.
Ms. Pillsbury, you represent the State officials trying to
provide all of our constituents with safe drinking water. You
held up a great visual. According to EPA, if the sequester goes
into effect, more than 100 water quality protection and
restoration projects would be eliminated. What does that mean
from your perspective in trying to provide safe drinking water?
Ms. Pillsbury. Well, the Safe Drinking Water Act is really
structured to be a multibarrier approach to safe drinking
water. So, you know, you start with a source, the treatment,
the distribution system, and then monitoring and getting
information out there. That source piece of it, making sure
that the water is clean to begin with, is really critical.
Trying to treat it at the public water systems is very
difficult, sometimes impossible, oftentimes very expensive.
So we like the Clean Water Act. And there is actually work
in progress between Groundwater Protection Council, as do our
association, the State Drinking Water Administrators, and the
Association of Clean Water Administrators to look at what tools
can be brought to bear under the Clean Water Act to protect the
sources being used by public drinking waters.
Mr. Tonko. And, Ms. Marks, you represent the State
officials who work every day to address cleanup of contaminated
sites. If the sequester, again, goes forward, we are told that
nearly 300 contaminated, leaking underground storage tanks
would not be cleaned up. Nearly 600 contaminated properties
would not get cleaned up under the voluntary cleanup program.
What does that mean to the work that is assigned you and
your colleagues?
Ms. Marks. Well, the Federal dollars that come in to do
cleanups are absolutely vital, and it would be devastating to
our programs to lose that assistance. Certainly, the States
provide a certain amount of that funding, but the Federal
funding is actually integral to getting those sites cleaned up.
Mr. Tonko. And, Ms. Harrison, as a State legislator, you
have to deal with State budgetary issues every year. I served
for 25 years in State government in New York; I know the
struggles States are facing.
Are the States prepared to step in and make up for any loss
of funding if that should be the result here from Washington?
Ms. Harrison. The short answer is, no, sir. I think we have
made significant cuts to our department budgets already, and we
have actually replaced a lot of the State funding with Federal
funding and moved positions into federally funded positions. So
I think any cuts would be devastating to our ability to protect
the public health of our citizens.
Mr. Tonko. And, Mayor Sesma, you represent cities across
the country. Can our cities absorb these costs if Federal
funding is cut significantly? And what plans would perhaps
States make to respond to the shortfall?
Mr. Sesma. Well, the intergovernmental revenue from State
and Federal governments have caused other stresses on local
budgets. That either means an increase in local taxes or an
increase in fees or new fees, or projects don't get done or
they don't even get planned.
So one of the big asks of the NLC is to continue to support
the financing mechanisms that exist, and ask the Federal
Government, Congress, to consider new or additional creative
mechanisms that allow us to begin to deal with this
infrastructure--not just new infrastructure, but maintaining
the existing infrastructure that is becoming obsolete and
inefficient.
Mr. Tonko. Thank you.
It becomes clear to me that this panel is working hard
every day to implement our environmental laws and doing a
commendable job, but sequestration is an imminent threat. If
these important programs survive sequestration, the budget
here, the Ryan budget, threatens to cut Federal funding even
more drastically.
One of today's witnesses has suggested that the members of
this subcommittee write to the Appropriations Committee and
urge them to ensure adequate funding for these programs. I
think that is a great idea. And I would like to pledge to work
with our outstanding chair to convey that message to the
appropriators. I hope that we can work together and make sure
that we don't sacrifice public health and the environment with
ill-considered budget cuts.
So thank you for your advocacy and your advice.
Mr. Shimkus. The gentleman yields back his time.
The chair now recognizes the vice chairman of the
subcommittee, Mr. Gingrey, for 5 minutes.
Mr. Gingrey. Mr. Chairman, thank you for the recognition.
And since we are somewhat rushed for time--I think votes are
coming up pretty soon--let me get right to my questions. And I
would like to begin with Ms. Marks.
Ms. Marks, how much staffing and other resources would the
EPA need to amass to replicate the technical expertise, the
enforcement, and administrative efforts provided by the States
for environmental and public health protection?
Ms. Marks. Since each State runs their own programs, it
would be difficult to estimate that. But I can tell you from
Arkansas, which is a small State, we employ anywhere from 375
to 400 people. We have expenditures of over $50 million a year.
And even though we do operate State programs in addition to
the Federal programs, if EPA came in they would have to pick up
those State programs, such as landfills. You can't leave
landfills unregulated. So they would have to pick up beyond
what they are currently overseeing.
Mr. Gingrey. So, basically, lots of boots on the ground and
lots of expertise.
Ms. Marks. Yes, sir, absolutely. It would be a tremendous,
massive effort and change in the Federal organization.
Mr. Gingrey. Thank you. Thank you so much.
And now I would like to move to a couple of questions for
Mr. Steers.
Some have argued that States use variances as a, quote,
``copout'' for enforcing strict environmental standards in
their States. Do you agree with that, Mr. Steers?
Mr. Steers. No, I do not. I think that variances are a
necessary----
Mr. Gingrey. And if you don't mind, also just explain what
they are, how that works, and----
Mr. Steers. Sure. Variances are a regulatory process that
States use in order to adapt local conditions and site-specific
risk that may be present that the regulations may not account
for, and the ability to allow facilities to operate at a
different standard based on those local conditions.
Variances are not a copout, and they are taken seriously by
the States, inasmuch as they are needed in order to look at the
differences in the way that regulation is applied across the
country.
For example, groundwater protection standards and how we
regulate groundwater in the eastern part of the United States
around the landfill where there may be shallow aquifers is not
necessarily the same as you would have out west or in the
desert where groundwater may be several hundred feet below the
surface. And so you need to be able to take into account the
local geologic conditions when you are applying a one-size-
fits-all national standard.
Mr. Gingrey. So that basically is what you are talking
about when you say ``variances.''
Mr. Steers. Variances, yes.
Mr. Gingrey. Thank you very much.
In my remaining time, I would like to conclude with one
question for Ms. Pillsbury. Your testimony talks about
tailoring of Federal regulations. This doesn't mean
compromising water quality for consumers in that State, does
it?
Ms. Pillsbury. No, it certainly does not. The ultimate
compliance with whatever the regulation is is the compliance
that we achieve.
There is in implementing pretty much any national
regulation some discretion on the part of States about how best
to do that given local circumstances. So that is really what I
meant by saying ``tailoring,'' to make it so that it is as
practical to implement as possible.
Mr. Gingrey. Can you tell me the difference in tailoring
and variances? Is there a distinct difference there?
Ms. Pillsbury. Well, ``variance'' I think is an actual term
that is used in the rules and regulations. And so tailoring is
more of a concept of making a national standard fit within your
State and how best to implement it, how best to train people,
you know, what kind of capabilities they are going to need to
be able to meet compliance.
So we don't really do variances in the drinking water
program that are allowed by statute, but we do a lot of
tailoring to get the job done.
Mr. Gingrey. I understand. Thank you.
Thank all three of you.
Mr. Chairman, I would yield back.
Mr. Shimkus. The gentleman yields back his time.
The chair recognizes the gentleman from California, Mr.
McNerney, for 5 minutes.
Mr. McNerney. Well, I thank the chairman. And I want to
congratulate you for your elevation and selection. And I look
forward to working with you on a bipartisan basis to solving
some of the problems that we are facing in this committee.
You know, I found the testimony on fracking, Mr. Fitch and
Mr. Lepore, very informative. So thank you for coming, as well
as all the witnesses.
One of the questions that I have that is sort of ongoing
about fracking is, how important is complete transparency to
public acceptance of fracking in local communities?
Mr. Fitch. I think transparency is a crucial element in the
whole debate there. There is a lot of misunderstanding,
frankly, on the part of the public about what fracking is and
what the potential impacts are. There is a lot of suspicion
about the chemicals that are used.
I think it is important for the States to get that
information out there. In Michigan, we are going all over the
State, my staff and I, giving presentations to kind of try to
get the facts out there and hear people's concerns.
Mr. McNerney. Mr. Lepore?
Mr. Lepore. I would agree with Mr. Fitch's comments. I
think transparency is critical. Building trust with our
community members is critical. Imparting information is
critical is a huge challenge.
To use one example, I think the term ``fracking'' has been
used widely as sort of a substitute for all things oil and gas.
And it is an ongoing challenge to try to parse those
distinctions.
Mr. McNerney. I mean, it sounds to me like disclosure is
something that the Federal Government could impose as a
requirement on fracking nationwide. I mean, there are
differences in terms of geologic formations, but disclosure is
something that should be universal in all fracking
requirements. Would you agree with that?
Mr. Lepore. Obviously, Colorado has made the decision that
disclosure is important. And it was a long and lengthy
conversation in Colorado. It started in 2008. There were a lot
of concerns by operators with respect to trade secrets, in
particular. And I think FracFocus is a tremendous tool that is
available to all States. I think it is in operators' best
interest, to be quite frank, to disclose the chemicals they use
in frack fluids.
Mr. McNerney. Good. I agree.
Like Colorado, California, my home State, is water-bound. I
mean, we always have to worry about our water sources. And one
of the concerns I have about fracking is the amount of water
that is used and what happens to that water after it is used.
Is it reclaimed? Is it discarded into local aquifers?
How do we deal with the water issue in a State like
California and Colorado?
Mr. Lepore. When you talk about how much water it takes to
frack a well and you talk about several million gallons, it
certainly seems like a big number. For the State of Colorado,
the amount of water used totally for fracking is, we have
calculated, at less than 1 percent. The vast, vast majority of
our water is used for agriculture.
That said, again, I would say that reclaiming and recycling
and reusing that water is becoming an entrepreneur's dream.
There is a huge need to do that. And we are approached fairly
regularly now--we, the Colorado Oil and Gas Conservation
Commission--from businesses interested in instituting onsite
recycling and reclamation and asking us questions about how
that would be regulated and so forth.
So it is an important issue. It is going to continue to be
an important part of discussion. And we should encourage as
much reuse as we can.
Mr. McNerney. So that is an area for innovation, then.
Mr. Lepore. Yes, sir.
Mr. McNerney. Recycling and recovering.
What about the water that is just discarded after fracking?
I mean, is some of the water that is recovered just discarded
into the aquifer? Or how is that managed?
Mr. Fitch. That so-called flow-back water has to be handled
carefully because it does have some--it may have some remnant
contaminants it in from the hydraulic fracturing additives, and
it may also may be picking up salts and compounds from that
target formation.
In Michigan, it all has to be contained in steel tanks and
injected into deep injection wells. And most States have
similar methods for dealing with it.
Mr. McNerney. And so that is part of the transparency, is
how that wastewater is finally disposed of.
Mr. Fitch. That is correct.
Mr. McNerney. That would have to be part of the
transparency.
Mr. Fitch. Yes.
Mr. McNerney. Go ahead.
Mr. Lepore. I think the disposal question, too, is one
which highlights what we are talking about today, which are the
differences regionally or locally. In Colorado, like Michigan,
most of our exploration and production waste, when it is
exhausted, is injected into deep disposal wells. Other States
use different disposal methods depending on the geology and
topography and so forth, including discharge to surface
streams. So they have to deal with the waste the way that works
for them.
Mr. McNerney. Thank you.
Mr. Chairman, I yield back.
Mr. Shimkus. The gentleman yields back.
Just for notification of how we are going to operate, we
are going to try to finish 5 more, 10 more minutes of
questioning. The two Texans, Mr. Barton will be next, then Mr.
Green. I think Mr. Green and I have agreed to be the last guys
out of here to hit the floor to vote. We would like to come
back after the votes for those who still want to ask questions.
And, with that, I recognize Mr. Barton for 5 minutes.
Mr. Barton. Thank you, Mr. Chairman.
I have listened to all the testimony and to the questions
that have been asked so far and want to go back to the purpose
of the hearing. ``The Role of the States in Protecting the
Environment,'' that is the title of this hearing.
As I read the Constitution, it starts with three words,
``We, the people,'' which means the power comes from God to the
people. The people delegate some of that power to the States;
States delegate some of their power to the Federal Government.
And then the Tenth Amendment says that all powers that are not
explicitly enumerated in the Constitution are reserved for the
States or the people, respectively.
As is pointed out by the witness from Arkansas, who
represents all the States, as I understand her role, the States
are doing most of the work in actual environmental protection
on a day-to-day basis. They use some Federal law, and, of
course, there are State laws to do it.
So the issue before the subcommittee and this panel is
really, who is going to set the policy? Who is best able to set
the policy? Is it the Federal Government, top-down, or is it
the people in the States, bottom-up?
And I listened, and with the exception of the gentlelady
from North Carolina, I didn't hear too much complaint about the
States being able to set the policy.
Now, I want to ask the gentleman from Colorado, do you
think the Federal Government is better able to set the policy
in your State than you and the legislature and the people of
Colorado?
Mr. Lepore. No, sir, I don't think so. I think that we have
had a successful oil and gas commission in the State for 60
years that understands the distinctions not only of Colorado
versus other States but in our different oil- and gas-producing
basins. We have coal-bed methane, we have Niobrara shale, we
have a variety of different geologies. We have a 60-year
history of rules that have evolved over time as our
understanding and as technology have evolved. So I think the
Oil and Gas Commission is perfectly capable of setting policy.
I think there is a role for the Federal Government in
research and other things that are a little bit beyond our
reach in terms of the ability to finance those kinds of
projects. But I think the States are doing a fine job.
Mr. Barton. As I understand the process in Colorado, these
State regulations that have just been promulgated are the
result of a process. There was a lot of stakeholder
interaction, a lot of involvement with the people and the
legislature and the industries, and it kind of evolved. And,
finally, either there was a regulation issued by your agency or
a law passed by the State of Colorado that you are
implementing. Is that correct?
Mr. Lepore. That is correct, sir. What we adopted are rules
of the agency that the commission itself adopted pursuant to
our statutory authority. The stakeholder process for the
setback rules, in particular, was a year long. About 11
separate stakeholder meetings over a period of 7 months, and
then we moved into more formal rulemaking.
We had representatives from industry, of course, from
environmental groups, from groups like homebuilders,
agricultural interests--very, very diverse. So everybody had an
opportunity to be heard.
Mr. Barton. So not everybody is totally happy, but
everybody had input. And you have a set of regulations now that
seems to be working and seems to be successful. Is that a fair
statement?
Mr. Lepore. I think that is a fair statement. I might add
that I don't think anybody was totally happy. But, yes.
Mr. Barton. Now, the gentleman next to you, Mr. Fitch,
represents the Interstate Oil and Gas Compact Commission, which
is a voluntary association of State regulators and State
governments. Is that not correct?
Mr. Fitch. That is correct, sir.
Mr. Barton. And you have provided technical information to
any State who wishes on the various technical aspects of
hydraulic fracturing. And in doing that, you have been able to
use some research from various universities, like mine, Texas
A&M, that could give States a technical basis on which to base
their regulations. Is that not correct?
Mr. Fitch. That is correct. That is one of the great
benefits of IOGCC, that ability to share information and
coordinate between the States.
Mr. Barton. Now, is anybody complaining that that process
is flawed or broken?
Mr. Fitch. No, sir. It has been very effective.
Mr. Barton. Mr. Chairman, I am going to yield back. But it
would appear to me that the current law gives the States great
flexibility, great opportunity. They can get research money and
technical assistance from a number of sources, including the
Federal EPA. But the basic policy decisions on these issues
appear to me to be best made at the State. And the State seems
to be using those authorities, if Colorado is any example, in a
very fair and effective process.
And, with that, I yield back.
Mr. Shimkus. The gentleman yields back the time.
The chair recognizes the gentleman from Texas, Mr. Green,
for 5 minutes, the former ranking member of this committee.
Noted.
Mr. Green. When am I going to get my picture put up, Mr.
Chairman?
Thank you, Mr. Chairman. I appreciate the panel and the
questions.
We conveniently hear that uniform Federal standards are
necessary whenever Federal legislators want to override State
actions. However, isn't it accurate to describe most Federal
environmental laws as creating a broad, overarching Federal
framework, while delegating to the States the responsibility of
creating specific regulations, regulations to reflect the
realities of circumstances that differ in each State that may
require different approaches?
And if you can't tell, I am from Texas also and served 20
years in the legislature. And, of course, we always have
complaints about EPA, but we also know that our Texas
Environmental Quality Commission and EPA work out the
relationship that they have so that permits are issued, except
now in carbon. But is that generally the State experience?
Mr. Fitch. I would say so. A lot of the States, including
Michigan, had environmental regulations on the books before
some of the major Federal legislation. So it is not like we
have been lagging behind. But I think some of the Federal
legislation did establish kind of a threshold or a standard
that applies across the States, so it does encourage some
consistency.
Mr. Green. But in every case I can think of, it is a
partnership, though, between EPA and the local State regulator
in actually issuing permits and enforcing it.
Mr. Fitch. Yes, it is.
Mr. Green. OK.
Mr. Fitch, much has been discussed regarding the States'
role in regulating oil and gas, natural gas development,
production, and the process of hydrofracking. In some cases,
hydrofracking is taking place in States that aren't
traditionally viewed oil- and gas-producing States.
And I will give you an example. We have fracked in Texas
for, I guess, 30 years. Of course, the success now is because,
you know, first Barnett Shale, Eagle Ford, and even in west
Texas now reopening the Permian Basin. And, for example,
Pennsylvania has actually done some things locally that Texas
actually followed Pennsylvania's lead on, one in the release of
the--at least a lot of the information that is in the fluid.
Is there a program available to States to review their
State regulatory programs and assess what is currently on the
books between the interstate compact?
Mr. Fitch. Yes. The IOGCC does perform that function. And
the Groundwater Protection Council has a peer-review program
for the Underground Injection Program also that--you know,
other States come in and compare against standards to assure
some consistency.
Mr. Green. Do you know--which is STRONGER? How many State
reviews have there been done?
Mr. Fitch. By STRONGER? We have done about six or seven
just on hydraulic fracturing. I think the States with probably
about 90 percent--accounting for 90 percent of the production
have undergone an overall State review.
Mr. Green. Is there a separate review available to States
for hydraulic fracking, or fracturing?
Mr. Fitch. I am sorry?
Mr. Green. Is there a separate review available for States
for hydraulic fracking?
Mr. Fitch. STRONGER, by the way, is the State Review of Oil
and Natural Gas Environmental Regulations--they do have a
module for hydraulic fracturing.
The IOGCC does--I mean, we have kind of an informal system,
and they also have an inspector certification program that will
help assure that State inspectors are qualified and capable.
Mr. Green. I have some information that says STRONGER has
completed specific hydrofracking reviews for Arkansas,
Colorado, Louisiana, Oklahoma, North Carolina, Pennsylvania,
and Ohio. In each of these reviews, have they had a critical
assessment? And is that available to other States who may also
be experiencing expansion of hydrofracturing?
Mr. Fitch. Yes, there is a report made on each of those
reviews, and it is available on the STRONGER Web site.
Mr. Green. OK.
Thank you, Mr. Chairman. I will give you back 49 seconds.
Mr. Shimkus. And I will take that 40 and make an
announcement that we will recess and return approximately 10
minutes after the last vote is called, which should give you
time to get a little boy's or girl's break, maybe a soda or a
sandwich. But we will reconvene about 10 minutes after the
vote.
[Recess.]
Mr. Shimkus. Let me call the hearing back to order. And
there are a couple pieces of business I want to make sure I
accomplish.
I ask unanimous consent that all Members be given 5 days
for opening statements that will be submitted as part of the
record.
Without objection, so ordered.
And, with that, thank you for coming back. Hopefully, you
got a chance to take a break. I didn't get my soda or candy
bar, so I am a little grouchy. But they are used to that in
this committee, so I am in good shape.
So, with that, I would like to--seeing no other Members
present, Mr. McKinley is recognized for 5 minutes for his round
of questions.
Mr. McKinley. Thank you, Mr. Chairman. I heard earlier it
was going to be quite a few minutes before, but I will go with
it. Thank you very much.
I have questions of Ms. Harrison, if I could, please, if
you could get your mike on and close.
Ms. Harrison. Yes, sir.
Mr. McKinley. OK. I was one of the sponsors of the bill on
the fly ash legislation, so I am just curious. Let's just start
with that, if you would. Have you read both of the bills?
Ms. Harrison. I have read some summaries of them.
Mr. McKinley. OK. Could you summarize the difference
between the two bills?
Ms. Harrison. I am not sure--between the Senate and the
House bills?
Mr. McKinley. No, between the House bills that passed. The
Senate has never taken one.
Ms. Harrison. Oh, I am sorry. OK. No, sir, then I haven't
read both of them. And I am not familiar enough to summarize
the differences.
Mr. McKinley. OK. Because you made quite a bit in your
written presentation about your knowledge of it. But you are
saying you have not even read the bill and you don't know the
difference between the two.
Ms. Harrison. I----
Mr. McKinley. Thank you. That is it.
Do you acknowledge that the--does the EPA have the
expertise to deal with fly ash?
Ms. Harrison. Well, I think my position----
Mr. McKinley. It is kind of a yes-or-no.
Ms. Harrison. I think they are in a better position than we
are----
Mr. McKinley. OK.
Ms. Harrison [continuing]. To deal with fly ash.
Mr. McKinley. And that is fine.
Ms. Harrison. And that was my point.
Mr. McKinley. So if they have the expertise and they have
made some determinations about fly ash over the last few years,
I am just curious, do you disagree with their reports? You are
familiar they have done two reports on fly ash; are you not?
Ms. Harrison. Well, I am familiar that they have done the
reports. I am not sure I am intimately familiar with the
details of those reports.
Mr. McKinley. Interesting. They have done two reports, and
both times the EPA has said it is not a hazardous material. So
your statements in your testimony are based on what fact?
Ms. Harrison. Based on--actually, I----
Mr. McKinley. Do you have the educational background,
science background, to differ with them on this? If the EPA has
said it is OK----
Ms. Harrison. No, I have submitted with my testimony some
pretty significant research that has taken place at Duke
University. And that study that was released and attached to my
testimony by----
Mr. McKinley. No, my question was, how did you differ from
the EPA's own determination? They have done it in 1993 and
2000. Both times they said, the EPA, that the fly ash is not a
hazardous material, and it should be continued to be recycled.
It is a way of taking care of the product.
So if you are differing from that, I am just curious, on
what scientific basis are you saying the EPA is wrong?
Ms. Harrison. As I mentioned--thank you for that question.
As I mentioned, we have had some scientific studies that
have been undertaken in North Carolina by Duke University, Dr.
Vengosh. I included it in my testimony, and it shows
contamination from seepages from some of these coal ash ponds.
Mr. McKinley. The material--I think one of the material
differences is that the opponents of the legislation--and we
have passed it four times out of the House--is that they did
not--the people in the House did not want the EPA to have
primacy, and they wanted to retain that control with the State
legislatures, State governing groups.
Now, are you saying that North Carolina doesn't have the
expertise to handle fly ash?
Ms. Harrison. Yes, sir. That has been my experience with
working with our agencies and working with the legislature and
trying to get a better, safer regulatory regime for coal ash. I
don't feel like we have good regulations in place.
Mr. McKinley. Do you know that--do you--the way you have
acknowledged that you haven't even read the bill and you don't
know the differences. You know, in the bill, one of the major
differences was that we listened to people like you and we put
language into the bill to deal with the disposal of fly ash
that heretofore is not in current law. And for you in North
Carolina, it gave you the ability in North Carolina to call for
liners under new impoundments.
So we are trying--and the EPA--and, furthermore, that if
the EPA determines that you in North Carolina are not following
those standards, they can seize the landfill and take over
primacy themselves.
So by virtue of what you are saying, you were having a
problem that you thought you--with the legislation. It actually
was intended to help you in North Carolina and any other State
that has some degree, or lack thereof, of how to dispose of fly
ash.
So I am really troubled by your remarks and particularly
your written testimony. And I appreciate what you are saying. I
am--fortunately, we have run over time. But thank you. Because
you have explained a little bit about why you have taken the
position you have had. Thank you very much.
Ms. Harrison. I appreciate that. I think a lot of my
remarks were driven by the findings of the CRS report. And I
think they found significant shortcomings with the bill. And I
think I was basing my testimony on that, the CRS report.
Thank you.
Mr. McKinley. OK. So, in other words, you are in opposition
to what the Environmental Council of States, one of the more
well-recognized groups around the country, that they were
supporting; the Association of State and Territorial Solid
Waste--so many people all came together, the stakeholders, to
make this bill possible. And you are saying they were wrong. I
find that curious.
Thank you very much. Sorry. I yield back my time.
Mr. Shimkus. The gentleman's time has expired.
Just for comity and appreciation for the committee, not
everyone has a lot of scientific expert--I definitely don't. I
understand legislators trying to be involved. And I am a big
coal ash supporter. We appreciate your being here and your
testimony.
I want to do a couple more pieces of business. I ask
unanimous consent to include statements from seven
environmental groups, dated February 15, 2013; a statement from
Patrick Parenteau, P-a-r-e-n-t-e-a-u; and a statement from
Susan Bodine for the record.
Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Shimkus. We still have--Mr. Bilirakis, are you prepared
to ask questions?
The chair recognizes the gentleman from Florida for 5
minutes.
Mr. Bilirakis. Thanks so much. Appreciate it.
Chairman Shimkus and Ranking Member Tonko, I am honored, of
course, to have the opportunity to represent Florida's Ninth--
12th Congressional District--it is 12 now--on the committee,
and I look forward to working with you. Thank you forgiving me
the opportunity to serve on this committee.
Ms. Marks, you have spoken about the delegation process and
the importance of respect between the Federal and local
agencies responsible for protecting the public. Unfortunately,
this relationship does not always live up to our ideals. For
example, the EPA issued an America nutrient criteria for
Florida to avoid litigation with environmental groups and, in
the process, circumvented the State's reasonable and
scientifically based efforts to address its water quality. That
rule was based on flawed science, had no consideration for the
harm it would inflict on Florida jobs, particularly in
agriculture, and was a threat to other States' rights to self-
regulate.
Considering the EPA's recent agenda, what are some of the
examples of specific steps that Congress can take to ensure
that State and local governments are able to compete with
Federal agencies on a level playing field when disputes over
Federal regulations are called into question?
Thank you.
Ms. Harrison. Thank you, Congressman.
I am not sure that I can tell you what type of specific
statutes might be passed or anything to that effect.
I can tell you that we certainly are concerned that
cooperation with the States be encouraged at every point, that
there be full disclosure with the States. We would like to be
in on the rulemaking process at an earlier time, and we would
like to certainly be in on the guidance that is issued with
these rules. There have been times, I think, where guidance has
been issued that has not adequately taken into account the
effects that it will have, particularly the resources it will
drain from the States.
So we would like to work with EPA. And I don't know if a
statute would be necessary in that regard----
Mr. Bilirakis. Well, any steps, exactly, not necessarily
statutes.
Ms. Marks. We would like to work with EPA and have EPA
encouraged to work with us on getting us involved early in the
adoption of rules and on the guidelines to implement those
rules.
Mr. Bilirakis. Very good.
Anyone else on the panel wish to comment?
Well, thank you very much, Mr. Chairman. Appreciate it. I
yield back the balance of my time.
Mr. Shimkus. The Gentleman yields back his time.
The chair recognizes the gentlelady from Colorado, Ms.
DeGette, for 5 minutes.
Ms. DeGette. Thank you very much, Mr. Chairman.
For those of you who don't know, I have been working on a
bill called the FRAC Act since 2006. And what this bill
basically does is it says, just like every other industry or
activity that puts substances into drinking water, the oil and
gas industry should be subject to the requirements of the Safe
Drinking Water Act.
Now, as you all know and we know, what the Safe Drinking
Water Act does is it establishes baseline requirements for
underground injection control, but then States may set stricter
standards. And, also, the EPA works with States to make sure
that they promulgate regulations that are unique and work for
those States.
So, for example, if you have a State like my State of
Colorado or Pennsylvania or North Carolina or California or New
York or any of these other States that are doing hydraulic
fracturing, the geologic issues are different in all of those
States, the depth of the wells is different in all of those
States.
So the Safe Drinking Water Act wouldn't put a cookie-cutter
process into place. What it would simply do is say, you have to
meet a minimum requirement for the chemicals that are being
injected into that ground. And you have to have a readily
accessible disclosure scheme.
And, frankly, a couple of years ago, the industry and I
were this close to being able to come up with an agreed-upon
reporting scheme that would not be overly onerous but would
allow consumers to see what chemicals were going into their
drinking water.
I am getting ready to reintroduce that bill again next
month, and I want to ask a couple of questions around that.
First of all, Mr. Lepore, since you are my guy from
Colorado, and I am so proud of the work that your agency has
done, Colorado, you would say we are really in the vanguard of
the States that have enacted rules around fracking and natural
gas development, correct?
Mr. Lepore. Yes, I would.
Ms. DeGette. And one reason is because, as you said, we
have been doing natural gas and oil in Colorado for over 100
years, right?
Mr. Lepore. Yes.
Ms. DeGette. Now, Representative Harrison, in your State,
you said you only just started fracking, and you really don't
have a regulatory scheme, right? Is that correct?
Ms. Harrison. Actually, we haven't actually started
fracking. We lifted the ban on fracking and are anticipating
permitting in the next year or 2.
Ms. DeGette. So you have absolutely no regulatory history
on hydraulic fracturing.
And this is particularly true with fracking, Mr. Chairman,
because it is a technique that has been found to use in all
types of formations, whereas, before, some of the traditional
techniques were not economically feasible to use all around the
country.
So, Mr. Lepore, I wanted to ask you, if we have widely
ranging techniques and formations and State regulatory
frameworks, I am going to assume that you and your association
wouldn't disagree if there was a Federal disclosure rule that
was sort of a baseline rule so long as the EPA worked with
States and States could adapt that to their own needs, correct?
Mr. Lepore. With the caveat that the devil is in the
details.
Ms. DeGette. Well, obviously. But, I mean, the general
concept, you don't disagree with that, right?
Mr. Lepore. The general concept of disclosure I do not
disagree with.
Ms. DeGette. OK.
And let me ask you another question. In your written
testimony, you said that the Colorado Commission prides itself
on oil and gas development tailored to the needs of specific
basin, environments, and communities.
Do you think that further flexibility is needed for
development on split estate lands?
Mr. Lepore. Split mineral and surface estate lands?
Ms. DeGette. Yes.
Mr. Lepore. I think that is why we have the rules that we
have and why we have just gone through the setback----
Ms. DeGette. So would you say, yes, local consultation is
necessary to do that?
Mr. Lepore. With local governments?
Ms. DeGette. Yes.
Mr. Lepore. I think engaging with local governments is very
important.
Ms. DeGette. It is critical, right?
Mr. Lepore. Yes.
Ms. DeGette. Thanks.
And one more thing, I wanted to ask you about this
reporting under FracFocus. How many States are requiring
disclosure of frack fluid components through FracFocus?
Mr. Lepore. I am getting two different answers, but----
Ms. DeGette. Mr. Fitch, do you know the answer to that?
Mr. Lepore [continuing]. I believe the answer is 10 or 13.
Ms. DeGette. OK.
Mr. Lepore. Thirteen.
Ms. DeGette. And is it required disclosure through
FracFocus, or is it voluntary disclosure?
Mr. Lepore. Required by statute or rule, as I----
Ms. DeGette. In all of those States? Yes. OK. The audience
member is nodding yes.
So that is about 10 or 12 States, correct?
Maybe, Mr. Fitch or Mr. Lepore, you can supplement your
testimony and give me a list of those States. I am sure my
staff knows, but I don't know off the top of my head.
One last thing I wanted to ask is, the EPA study on the
fracking is coming out next year. And once that happens, then
we are going to all sit down, and I hope that you will come and
help us work this out to see what the appropriate regulatory
framework will be. Because I think the States and the Federal
Government really need to work together on this issue.
Thank you for your comity, Mr. Chairman.
Mr. Shimkus. The gentlelady yields back her time.
The chair now recognizes the ranking member of the full
committee, Mr. Waxman, for 5 minutes.
Mr. Waxman. Thank you very much, Mr. Chairman.
We have heard today from some of the witnesses that we can
rely upon the States--or Members--we can rely on the States to
protect the public health and environment, and, therefore, a
reduced Federal role is appropriate. But the States' track
records are not flawless.
For example, sea-level rise is an undisputed consequence of
a warming climate. Many States are dealing with this challenge,
but the response is not uniform. For example, the scientists on
North Carolina's Coastal Resource Commission recently concluded
that North Carolina could see a sea-level rise of more than 3
feet by the end of the century. This is critically important
information for coastal development decisions, but the
information wasn't consistent with the ideology of some in the
General Assembly.
Representative Harrison, are you familiar with what
happened in the General Assembly, and could you tell us about
it?
Ms. Harrison. Yes, sir, I am. It was rather a black mark in
the history of our legislature, I think.
What happened was, under pressure from developers in the
communities on the coast, legislation was introduced that would
have banned the calculation of sea-level rise as a factor in
climate change and acceleration from thermal expansion and
melting glaciers. So rather than factoring in a trajectory of
about a meter sea-level rise over the next century, the
legislation would have in fact limited us to anticipate an 8-
inch rise in sea-level rise.
We are particularly vulnerable in North Carolina because of
our 4,000-plus miles of shoreline and the low-lying areas near
the shoreline. So this is a real problem for folks who are
trying to have a better adaptation strategy----
Mr. Waxman. The bill that was introduced would have
precluded the commission from planning for anything other than
8 inches of sea-level rise. Is that right?
Ms. Harrison. Yes, sir.
Mr. Waxman. And after enduring public ridicule, the
legislature succeeded in blocking the Coastal Resources
Commission from estimating rates of sea-level change until July
1, 2016. Is that right?
Ms. Harrison. Yes, sir.
Mr. Waxman. Well, in your view, was this policy a policy
that ensures North Carolina makes the best decision possible
about its coastal development?
Ms. Harrison. I think it is sort of reflective of the
current attitude of the legislature, that they are not doing
what is best for the State or its resources.
Mr. Waxman. Well, States play a critical role in
environmental protection, but they don't always get it right.
And in some cases, as in the North Carolina example, State
legislatures have proposed or passed bills to tie the hands of
the State regulators, whose job it is to protect the
environment and public health.
Another example is South Dakota. And numerous other States
have laws on the books, as well, that prohibit the State
agencies from taking any actions that are more protective than
rules adopted by the Federal Government. In Ohio, the State
environmental agency is blocked from setting air quality
standards that are more stringent than the Federal standards.
And those are just a few examples.
State regulators may have the best interests of public
health and environment at heart, but they can only do what
their legislatures authorize them to do.
I assume that--do any of the witnesses disagree that an
agency can't take action if their State legislatures enact a
law that blocks them from doing so? Does anybody disagree with
that? That is just the reality.
While some here may believe that State regulators will
always be better than Federal regulators at protecting the
local environment, we have to remember this important lesson:
Polluters are fighting hard at the State level, as they do at
the Federal level, to block or weaken meaningful safeguards.
And that is why it makes sense to set a Federal floor of
protection for environmental laws, so that all Americans are
guaranteed a minimum baseline of protection. I wanted to bring
out that point.
And thank you, Mr. Chairman. I will yield back the balance
of my time.
Mr. Shimkus. The gentleman yields back his time.
Seeing no other Members present--Mr. Tonko, do you wish to
be recognized?
Mr. Tonko. Yes, Mr. Chair, just briefly. And I appreciated
the comments you offered on behalf of the subcommittee
concerning the cross-examination of our witness, Representative
Harrison.
But I am compelled to state that, you know, the
representative was invited here to speak as a legislator on
behalf of the National Caucus of Environmental Legislators. She
cited a scientific review or a study done by others.
And I thought that the cross-examination just didn't
respect this panel and its sacrifice, in whatever dimension, to
be here today. Their role is to inform us and to share their
opinions. And I found that being treated as a scientist,
which--I don't know her resume, but she was here as a
legislator. And, you know, to begin with, 2273 had passed the
House, but 1391 wasn't even released from committee.
And, again, I just feel it is important for us to stay
focused on the perspective that was being shared at the table
by our witnesses, and we show due respect when we conduct
ourselves that way. So I was very concerned about the cross-
examination by the gentleman from West Virginia.
With that, I yield back.
Mr. Shimkus. The gentleman yields back his time.
And I appreciate the comments. And I would just hope that,
as we move forward, that the same concern expressed on this
exchange will be the same expressed on the other side whence
there are other interchanges that will occur, because we are a
big, powerful committee here in Washington, we have divergent
views, and we fight like cats and dogs. We can agree to
disagree respectfully, and I think that is the point being
made. And we will do our utmost to try to do that.
We do thank you. Great testimony. We appreciate you coming
here. Thanks for staying through lunch so that everyone had a
chance to come and ask their questions.
You may get a few questions for the record submitted by
Members who were here or even were not here but are members of
the committee. If you would get those back to us as promptly as
possible.
I think our rules say--do we give a set time?
We have no idea. So try to do it as soon as possible. We
would appreciate it.
With that, I will adjourn the hearing.
[Whereupon, at 12:04 p.m., the subcommittee was adjourned.]
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