[Senate Hearing 114-45]
[From the U.S. Government Publishing Office]
S. Hrg. 114-45
HEARING ON THE NOMINATIONS OF ANN DUNKIN TO BE ASSISTANT ADMINISTRATOR,
EPA OFFICE OF ENVIRONMENTAL INFORMATION; THOMAS BURKE TO BE ASSISTANT
ADMINISTRATOR, EPA OFFICE OF RESEARCH AND DEVELOPMENT; AND JANE NISHIDA
TO BE ASSISTANT ADMINISTRATOR, EPA OFFICE OF INTERNATIONAL AND TRIBAL
AFFAIRS
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HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JUNE 11, 2015
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana BARBARA BOXER, California
JOHN BARRASSO, Wyoming THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska
Ryan Jackson, Majority Staff Director
Bettina Poirier, Democratic Staff Director
C O N T E N T S
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Page
JUNE 11, 2015
OPENING STATEMENTS
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Boxer, Hon. Barbara, U.S. Senator from the State of California... 3
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland 5
WITNESSES
Dunkin, Ann, nominated to be Assistant Administrator, EPA Office
of Environmental Information................................... 7
Prepared statement........................................... 9
Responses to additional questions from Senator Sessions...... 12
Nishida, Jane, nominated to be Assistant Administrator, EPA
Office of International and Tribal Affairs..................... 13
Prepared statement........................................... 15
Responses to additional questions from:
Senator Inhofe........................................... 18
Senator Fischer.......................................... 20
Burke, Thomas, nominated to be Assistant Administrator, EPA
Office of Research and Development............................. 69
Prepared statement........................................... 71
Responses to additional questions from:
Senator Inhofe........................................... 73
Senator Sessions......................................... 84
HEARING ON THE NOMINATIONS OF ANN DUNKIN TO BE ASSISTANT ADMINISTRATOR,
EPA OFFICE OF ENVIRONMENTAL INFORMATION; JANE NISHIDA TO BE ASSISTANT
ADMINISTRATOR, EPA OFFICE OF INTERNATIONAL AND TRIBAL AFFAIRS; AND
THOMAS BURKE TO BE ASSISTANT ADMINISTRATOR, EPA OFFICE OF RESEARCH AND
DEVELOPMENT
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THURSDAY, JUNE 11, 2015
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
406, Dirksen Senate Office Building, Hon. James M. Inhofe
(chairman of the committee) presiding.
Present: Senators Inhofe, Boxer, Capito, Boozman, Fischer,
Sullivan, and Cardin.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Our meeting will come to order and we will
start with opening statements.
Today we are receiving the nominations of three EPA
nominees: Ann Dunkin, to be Assistant Administrator of the
Office of Environmental Information; Jane Nishida, to be
Assistant Administrator of the Office of International and
Tribal Affairs; and Thomas Burke, to be Assistant Administrator
of the Office of Research and Development.
This committee intends to be fair and thorough in reviewing
EPA nominees. The President has the right to nominate people
who support his agenda, but the Senate has the right and
responsibility to review his nominees to make sure that they
are qualified and responsible professionals.
The President has nominated five officials for various
positions in the EPA. We received completed paperwork for
three, that is the three of you, on May 27 and promptly
scheduled this hearing. We are still waiting for paperwork on
the other two nominees, including Stan Meiburg, the nominee for
EPA Deputy Administrator, even though he was nominated in
January, and Karl Brooks, the nominee for Assistant
Administrator for the Office of Administration and Resources
Management.
This is the second nomination for Ms. Dunkin and Ms.
Nishida, and the third for Mr. Burke.
Even though Senator Reid chose not to bring these nominees
to the full Senate for a vote, these individuals became EPA
employees after they were first nominated and are working in an
acting capacity in the positions for which they have been
nominated. As a result, I would remind my colleagues who aren't
here yet that, unlike many nominees, these individuals are
answerable for the current policies and actions of the offices
to which they are nominated.
This is a rare occasion because most of the time when this
happens they haven't been in an acting capacity, and you folks
have, so that gives you and us an opportunity to have higher
expectations.
Now, I do have questions about the quality and transparency
of EPA science, GAO's recommendations to improve EPA's Science
Advisory Board, progress in fixing the human health risk
assessment program, and the fracking study; about the
transparency of the information provided on the grants it
awards. That is something I have been concerned about since the
time 10 years ago when I had the same capacity. And about the
quality of information that the EPA puts out and their social
media campaigns; and about the money we are spending overseas.
So I appreciate the witnesses being here today and I look
forward to asking these questions.
Senator Boxer.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe,
U.S. Senator from the State of Oklahoma
Today we are reviewing the nominations of three EPA
nominees: Ann Dunkin, to be Assistant Administrator of the
Office of Environmental Information; Jane Nishida, to be
Assistant Administrator of the Office of International & Tribal
Affairs; and Thomas Burke, to be Assistant Administrator of the
Office of Research and Development.
This Committee intends to be fair and thorough in reviewing
EPA nominees. The President has a right to nominate people who
support his agenda, but the Senate has a right and
responsibility to review his nominees to make sure they are
qualified and responsible professionals.
The President has nominated 5 officials for various
positions at EPA. We received completed paperwork for 3
officials on May 27, and promptly scheduled this hearing. We
are still waiting for paperwork on the other two nominees,
including Stan Meiburg, the nominee for EPA Deputy
Administrator, even though he was nominated in January, and
Karl Brooks, the nominee to be Assistant Administrator for the
Office of Administration and Resources Management.
This is the second nomination for Ms. Dunkin and Ms.
Nishida, and the third for Mr. Burke.
Even though Senator Reid chose not to bring these nominees
to the full Senate for a vote, these individuals became EPA
employees after they were first nominated and are working in an
acting capacity in the positions for which they have been
nominated.
As a result, I would remind my colleagues that, unlike many
nominees, these individuals are answerable for the current
policies and actions of the offices to which they are
nominated.
I do have questions--
about the quality and transparency of EPA science, GAO's
recommendations to improve EPA's Science Advisory Board,
progress in fixing the human health risk assessment program,
and the fracking study,
about the transparency of the information provided on the
grants it awards,
about the quality of information that EPA puts out and
their social media campaigns, and
about the money we are spending overseas.
I appreciate the witnesses being here today, and I look
forward to asking you questions.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Thank you so much.
Today our committee is considering three nominations and,
Mr. Chairman, I am grateful that you are having this hearing
and I am hopeful that we can move forward on them because it is
so critical to move forward with these particular people. We
want our agencies to fulfill their missions to serve the
American people.
I also want to note that all of our nominees today were
reported favorably out of this committee in the last Congress
and they have been re-nominated by the President. So, as you
have pointed out, they have been out here for a while.
We will hear from Ann Dunkin, who hails from my home State
of California. She has been nominated to be the Assistant
Administrator for Environmental Information at the EPA. She has
over two decades of technology management in the private sector
and the public sector, and she had 20 years at Hewlett Packard,
Mr. Chairman. So for my colleagues that say it is important to
have that kind of private business experience, she has had
that.
For the past 4 months she has been serving as the Chief
Information Officer at EPA. And prior to that she was Chief
Technology Officer for the Palo Alto Unified School District,
where she managed all aspects of the district's technology
strategy, infrastructure, and operations. Her experience spans
the disciplines of manufacturing engineering, software quality,
research and development, operations and information.
If confirmed, she will be responsible for managing EPA's
information technology investments, providing technology
services in OEI, which collects, manages, provides, and
safeguards environmental information. She would be charged with
leading the Agency's security program, which ensures that EPA
has a protected IT infrastructure.
Mr. Chairman, this is not an ideological position. This is
an issue of having the support within the Agency we, I think,
all agree is necessary.
We will also hear from Jane Nishida. I know she is going to
be introduced by Senator Cardin, so I won't say much about her
personally; I will defer to him. But she has been nominated to
be the Assistant Administrator for the International and Tribal
Affairs for the EPA. And the mission of that office is to
protect human health and the environment while advancing U.S.
national interests through international environmental
collaboration.
I will skip over all of her amazing qualifications and hope
that we move her forward expeditiously.
The committee is also considering the nomination of Dr.
Thomas Burke to be Assistant Administrator for EPA's Office of
Research and Development, which conducts research, provides
expertise on science and technology issues to many EPA
programs.
We know that strong science is the foundation of EPA
safeguards to protect public health and the environment, and I
know, although, Mr. Chairman, you and I agree most all the time
on the environmental issues, I know we want good people who are
working on the science so that we have confidence that,
whatever side of the issue we are on, we get the honest
opinions.
So, currently, Mr. Burke is serving as the Deputy Assistant
Administrator of the Office of Research and Development and is
Science Advisor for EPA.
Before joining EPA, Dr. Burke was a Professor and Associate
Dean of the Johns Hopkins Bloomberg School of Public Health in
Baltimore, Maryland. He has over 35 years of experience in
State and Federal leadership positions in health and
environmental issues, including as an official at the State of
New Jersey's Department of Health and Department of
Environmental Protection.
Dr. Burke has also chaired several studies by the National
Academy of Sciences and he has served on multiple EPA science
advisory councils.
Mr. Chairman, if confirmed, Dr. Burke would play a pivotal
role in ensuring that EPA's Office of Research and Development
conducts critical science research to help safeguard the health
of our constituents.
Today's hearing is such an important part of the
confirmation process. I hope that these nominees will move
forward expeditiously.
Sometimes, when we have controversial nominees, we have a
lot of people here. I am hopeful that the three of us are here
and that it is calm and that that is perhaps a good sign that
we can move you all forward.
I thank you, Mr. Chairman.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer,
U.S. Senator from the State of California
Today, the Committee on Environment and Public Works is
considering three nominations. The confirmation of highly
qualified individuals to lead Federal agencies is an extremely
important responsibility of the Senate. It is critical that we
move forward with these nominations so that Federal agencies
can fulfill their mission to serve the American people. I would
also like to note that all three of today's nominees were
reported favorably out of this Committee in the last Congress
and have been re-nominated by the President.
We will hear from Ann Dunkin, who hails from my home State
of California. Ms. Dunkin has been nominated to be the
Assistant Administrator for Environmental Information (OEI) at
the Environmental Protection Agency (EPA). She has over two
decades of technology management experience in both the private
and public sectors, including nearly 20 years at Hewlett
Packard. For the past 4 months, she has been serving as the
Chief Information Officer at EPA. Prior to joining EPA, she was
the Chief Technology Officer for the Palo Alto Unified School
District in Palo Alto, California, where she managed all
aspects of the District's technology strategy, infrastructure
and operations. Her experience spans the disciplines of
manufacturing engineering, software quality, research and
development, and operations and information.
If confirmed, Ms. Dunkin will be responsible for managing
EPA's information technology investments and providing
technology services in OEI, which collects, manages, provides,
and safeguards environmental information. She would also be
charged with leading the agency's Security Program which
ensures EPA has a protected IT infrastructure.
We will also hear from Jane Nishida. Ms. Nishida has been
nominated to be the Assistant Administrator for International
and Tribal Affairs (OITA) for the EPA. The mission of EPA's
Office of International and Tribal Affairs is to protect human
health and the environment while advancing U.S. national
interests through international environmental collaboration.
Ms. Nishida brings 30 years of experience working in
Federal and State government, and international and
nongovernmental organizations. She is currently serving as the
Acting Assistant Administrator for International Affairs, and
Principal Deputy Assistant Administrator for International
Affairs at the EPA.
Prior to her positions at EPA, she served in senior
environmental policy roles at the World Bank and she was the
Secretary of the Maryland Department of Environment. If
confirmed, Ms. Nishida would be responsible for identifying
international environmental issues and implementing technical
and policy initiatives to address those issues.
The Committee is also considering the nomination of Dr.
Thomas Burke to be Assistant Administrator for EPA's Office of
Research and Development, which conducts research and provides
expertise on science and technology issues to many EPA
programs.
We know that strong science is the foundation of EPA's
safeguards to protect public health and the environment. Dr.
Burke brings over three decades of experience on these issues.
Currently, he is serving as the Deputy Assistant Administrator
of the Office of Research and Development (ORD) and the Science
Advisor for EPA. Before joining EPA, Dr. Burke was a professor
and Associate Dean of The Johns Hopkins Bloomberg School of
Public Health, in Baltimore, Maryland. He has over 35 years of
experience in State and Federal leadership positions in health
and environmental issues, including as an official at the State
of New Jersey's Department of Health and Department of
Environmental Protection. Dr. Burke has also chaired several
studies by the National Academy of Sciences and has served on
multiple EPA science advisory councils.
If confirmed, Dr. Burke would play a pivotal role in
ensuring that EPA's Office of Research and Development conducts
critical scientific research to help safeguard human health and
ecosystems from environmental pollutants.
Today's hearing is an important step forward in the
Senate's confirmation process, and I hope that these nominees
move forward expeditiously. It is critical that the many
vacancies at EPA be filled with qualified nominees. EPA has a
critical mission to help protect public health and the
environment, and EPA's mission is strongly supported by the
American public.
Senator Inhofe. Thank you, Senator Boxer.
I would like to recognize Senator Cardin for your purpose
of making a statement or introduction.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Well, Mr. Chairman, thank you. I join
Senator Boxer in thanking you for convening this hearing on
three very well qualified individuals: Dr. Burke, who has some
ties to Maryland; Ann Dunkin from California; and Jane Nishida,
who we are particularly proud of in our State as the former
Secretary of the Department of the Environment.
I want to thank all three of you and I want to thank your
families for your willingness to serve the public. These are
tough times and difficult to step forward, and we thank you. We
know it is a personal sacrifice and sacrifice of your families.
Mr. Chairman, I particularly want to welcome our nominee,
Jane Nishida, before the committee. I have known and worked
with Ms. Nishida for many, many years. From 1995 to 2002 she
worked as the Secretary of Maryland's Department of the
Environment. Additionally, she served as the Maryland Executive
Director of the Chesapeake Bay Foundation.
I know you all have heard me talk enough about the
Chesapeake Bay, so I won't reiterate my love for our Bay. But I
want you to know that Ms. Nishida is well known for her
professionalism and supported by all of the stakeholders in her
work that she did with the Bay and with the State of Maryland.
She has great respect from the governments, great respect from
the NGOs, from the business community, including the
agricultural sector. She knew how to bring people together not
only, I would say, in a non-partisan environment, not
necessarily even bipartisan, to get results.
She also held positions as a legislative officer in the
Maryland Governor's Office and Committee Counsel of Maryland
General Assembly, and she reminded me that we first started
getting to know each other when I was Speaker of the House of
the Maryland General Assembly.
Prior to joining the EPA in 2011, she was the Senior
Environmental Specialist for The World Bank. She currently
holds the position of Principal Deputy Assistant Administrator
for EPA's Office of International and Tribal Affairs.
Mr. Chairman, we have a person who brings to this position
that she is seeking our confirmation experience at the State
level and at the national level. She has worked in the
executive branch, in the legislative branch. She understands
the sensitivities of how this position needs to be responsive
to all of the stakeholders under the responsibility of the
position.
I have been very impressed with her knowledge and
dedication to environmental issues and very much respect her
ability to work along with Democrats and Republicans in a way
to get things done. I have every confidence that she will do a
fantastic job as the Assistant Administrator for the Office of
International and Tribal Affairs. I thank her for her
willingness to step forward and I am proud to introduce her
today.
Senator Inhofe. Thank you, Senator Cardin.
We have three procedural questions to ask each one of you.
I will read the questions and I would like to have each of you
answer individually, starting with you, Ann, and working
across. OK?
Do you agree, if confirmed, to appear before this committee
or designated members of this committee, or other appropriate
committees, and provide information subject to appropriate and
necessary security protection with respect to your
responsibilities?
Ms. Dunkin. Yes, I do.
Ms. Nishida. Yes, I do.
Mr. Burke. Yes, I do.
Senator Inhofe. Thank you.
Do you agree to ensure that testimony, briefings,
documents, and electronic and other forms of communication of
information are provided to this committee and its staff and
other appropriate committees in a timely fashion?
Ms. Dunkin. Yes, I do.
Ms. Nishida. Yes, I do.
Mr. Burke. Yes, Senator.
Senator Inhofe. And do you know of any matters which you
may or may not have disclosed that might place you in a
conflict of interest if you are confirmed?
Ms. Dunkin. No, I do not.
Ms. Nishida. No, I do not.
Mr. Burke. No, I do not.
Senator Inhofe. Thank you very much.
You are recognized for your opening statement, Ms. Dunkin.
STATEMENT OF ANN DUNKIN, NOMINATED TO BE ASSISTANT
ADMINISTRATOR, EPA OFFICE OF ENVIRONMENTAL INFORMATION
Ms. Dunkin. Thank you. Good morning, Chairman Inhofe,
Ranking Member Boxer, and other members of the committee.
It is my honor to appear before you as President Obama's
nominee to be the Assistant Administrator for Environmental
Information for the Environmental Protection Agency.
Before I begin, I want to thank my partner, Kathleen, for
her support throughout this process and for joining me here
today.
While they are no longer with us, I also want to
acknowledge my parents for making it possible for me to be
here. My mother started programming in the 1950s at the
University of Pennsylvania, one of two women in her class at
Wharton. She has been a lifelong role model for me.
My father, who believed that all of his children, including
his daughters, could do anything they set out to do, inspired
me to pursue my dreams, even in the male-dominated fields of
engineering and technology.
My father's family is full of engineers and I have always
loved technology, so it was no surprise that I studied
engineering in college. I chose industrial engineering because
I cared about people and systems, as well as things.
After graduating from the Georgia Institute of Technology,
I joined Hewlett Packard, where I worked for nearly 20 years. I
started as a manufacturing engineer and quickly moved into
manufacturing management, where I learned the core values that
were embodied in the HP way and that even today guide my work
as a leader, values such as treating people with trust and
respect, always acting with integrity, and accomplishing
results through teamwork.
Over time, I moved from manufacturing management to
software quality, to research and development, to operations,
and then to information technology, earning progressively more
responsibility along the way. I worked on many exciting
projects and programs, ranging from running operations for HP's
entrepreneurial Internet startup businesses during the dot-com
boom, to managing the IT organization for Indigo, an Israeli
digital press manufacturer that HP acquired.
My final position at HP was back in R&D as the program
manager for a major new printer development program.
Throughout my time in HP's technology-intensive
environment, I learned how to manage, lead, and optimize
technology functions. And since people are any organization's
greatest asset, I learned how to work with and lead people at
the same time. From managing a small development team to
leading a group of 500 as a program manager, I developed my
professional expertise in designing and running technical
organizations in one of the best technology companies in
history.
After I left HP, I joined the Palo Alto Unified School
District as the Director of Technology and later as the Chief
Technology Officer, where I was responsible for envisioning,
procuring, and supporting technology solutions to enable the
work of 12,500 high-achieving K-12 students, along with nearly
2,000 faculty and staff.
While I loved to build new exciting technology at HP, I
found that working for the Palo Alto Unified School District
and helping every student and staff member achieve their
potential was more meaningful. Working in the public sector has
allowed me to contribute more profoundly to my community than
working in the private sector.
Joining the Environmental Protection Agency, where I have
been able to contribute not just to my local community, but to
impact the entire Country and help improve the quality of life
for every American, has been a logical next step for me both
professionally and personally.
It has been a privilege to serve the EPA and Administrator
McCarthy for the past 10 months and to serve as the EPA's CIO
for the past 4 months. I am excited about the opportunities
before us to build on EPA's successes and improve the delivery
of information technology services throughout the agency, to
improve the delivery of mission services to support the States,
tribes, and regulated community and general public, and to
deliver better tools that will allow EPA staff to be more
effective and efficient in the performance of their duties.
I am excited by the opportunity that the Federal
Information Technology Acquisition Reform Act provides to
improve oversight and accountability of IT projects and
programs throughout the agency, and I am pleased to have the
opportunity to bring digital services expertise into the Agency
to transform the way the Agency performs IT work to allow us to
become more agile and deliver customer-centric, not
stakeholder-centric, services.
While I am able to lead many of EPA's IT functions as CIO,
there are important duties reserved for the Assistant
Administrator. Should I be confirmed, I look forward to the
opportunity to bring my experience and expertise to the
performance and the responsibilities of the Assistant
Administrator for Environmental Information.
Thank you, Chairman Inhofe, Ranking Member Boxer, and
members of the committee for the opportunity to meet with you
today. I am happy to answer your questions.
[The prepared statement of Ms. Dunkin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Ms. Dunkin.
Ms. Nishida.
STATEMENT OF JANE NISHIDA, NOMINATED TO BE ASSISTANT
ADMINISTRATOR, EPA OFFICE OF INTERNATIONAL AND TRIBAL AFFAIRS
Ms. Nishida. Thank you.
Good morning, Chairman Inhofe, Ranking Member Boxer, and I
would also like to give a special thanks to Senator Cardin for
his kind introductory remarks.
I am humbled to appear before you today as President
Obama's nominee to be the Assistant Administrator for
International and Tribal Affairs at the U.S. Environmental
Protection Agency.
For the past 30 years I have worked in the field of the
environment at both the State and Federal level, and with
international and non-governmental organizations. It has been
my privilege to spend the last 4 years working at EPA, where
every day I have strived to further the Agency's role in
protecting human health and the environment.
Sitting here before you in these chambers, I think about my
parents and wish they could be with me here today. They are no
longer with us, but I know that, if they were, they would be
beaming with pride.
My father served in the U.S. Foreign Service for over 30
years, so from a very young age the importance of public
service was ever-present in my life. I saw first-hand the power
the United States has to improve people's lives both at home
and abroad.
I got my first start in public service working as committee
counsel in the Maryland General Assembly, where I worked with
Senator Cardin, as he noted in the introductory remarks. My
experience in the Maryland General Assembly was invaluable. I
learned about the importance of the legislative process and the
important roles of the legislative and executive branches of
government.
My next position was in the Maryland executive branch,
where I served under three different Governors. As a Governor's
legislative liaison, I worked on legislative issues relating to
agriculture, environment, natural resources, health, and human
resources. This enabled me to see clearly the connections
between human health and the environment, and how they are
inextricably linked.
In 1995 I was appointed Secretary of the Maryland
Department of the Environment. It was a privilege to serve in
this position for over 7 years, ensuring the quality of
Maryland's air and water, managing the safe disposal of
hazardous and solid waste, and restoring and protecting our
precious Chesapeake Bay. The position taught me how vital it is
for environmental mangers to involve stakeholders in the
decisionmaking process, local governments, business, farmers,
fishermen, and NGOs; to listen and to learn from them. It also
personalized things for me, to see firsthand how environmental
protection affects citizens' drinking water, the infrastructure
of cities, and the vitality of all the places where our
families live, work, and play.
When I left Maryland, I took a position as Senior
Environmental Specialist at The World Bank, sharing the lessons
that I had worked on for 20 years at the State level with
developing countries struggling with air, water, and other
environmental problems. It was an eye-opening experience and
one that reaffirmed how sharing lessons learned in the United
States can improve the global environment.
In 2011 I began my work at EPA, first serving as the
Director of Regional and Bilateral Affairs within the Office of
International and Tribal Affairs, and then, in 2013, I became
the Office's Principal Deputy Assistant Administrator. Taking
on this second role enabled me to work on the full breadth of
this Office's portfolio, including managing the American Indian
Environmental Office, which is responsible for our important
work with tribal nations.
Should I be confirmed, I commit to working steadfastly to
uphold the mission of this Agency and to continue the legacy
that I learned from a young age from my father, a tireless
dedication to public service.
Thank you again, Mr. Chairman, Ranking Member Boxer, and
members of the committee, for the opportunity to meet with you
today, and I am happy to answer any questions you might have.
[The prepared statement of Ms. Nishida follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Well, thank you, Ms. Nishida.
Mr. Burke.
STATEMENT OF THOMAS BURKE, NOMINATED TO BE ASSISTANT
ADMINISTRATOR, EPA OFFICE OF RESEARCH AND DEVELOPMENT
Mr. Burke. Good morning, Chairman Inhofe, Ranking Member
Boxer, and members of the committee.
It is an honor to appear before you today as President
Obama's nominee to be Assistant Administrator for Research and
Development at the U.S. EPA.
I have devoted my career to public health and environmental
protection. For more than 37 of EPA's 45 years, I have worked
closely with the Agency, first as a State scientist, as a
public health official, as an academic researcher, a member of
the Science Advisory Board, and have also served on the Board
of Environmental Studies and Toxicology at the National Academy
of Sciences and chaired a number of major National Academy
studies on EPA science.
Since January I have been serving as the Deputy Assistant
Administrator for ORD, as well as EPA Science Advisor.
As with most people, my interests were shaped by my early
experiences. Growing up in Jersey City, in the shadow of the
Statue of Liberty, I have vivid memories of my early
environment, before there was an EPA: the musty smell of low
tide in New York Harbor, the summer spraying for mosquitoes
with DDT, the apartment house incinerators, the plumes of smoke
from the Jersey Central locomotives, and probably, most
vividly, the chemical mountains, these giant slag heaps from
the chromium factories just one block from my childhood home.
I also had a very early interest in health and disease. I
was born with a congenital heart defect and blessed to have
life-saving open heart surgery at Johns Hopkins. But three of
my close childhood friends were not so fortunate; they died
from leukemia and brain cancer at very young ages.
My interest in the connection between environment and
health were galvanized during my graduate studies at the
University of Texas, when the National Cancer Institute
released the first maps, the Atlas of Cancer Mortality, that
showed that my home State and my home county led the Nation in
cancer deaths; and the media dubbed it Cancer Alley.
After graduate school, I was named Director of the New
Jersey Office of Cancer and Toxic Substances, and I led a lot
of the early research that shaped State and some national
approaches in looking at pollutants in the environment,
ensuring safe drinking water, reducing toxic releases, and
cleaning up hazardous waste. I also investigated childhood
cancer clusters from Rutherford to Toms River.
As a State scientist, I served three Governors, both
Republicans and Democrats, and I stood at their sides during
environmental emergencies like the dioxin contamination in the
iron-bound section of Newark, the chromium pollution in Jersey
City, and the closure of our beaches from sewage spills and
medical waste.
Now, these experiences have given me a very practical
experience and perspective on the importance of strong science
to guide our difficult environmental decisions. They have also
shown me that protecting the environment and having a healthy
economy go hand-in-hand. I think former Governor Tom Caine said
it best when he said that environmental problems are one of the
main barriers to economic growth, and these problems directly
undermine the State's ability to attract and keep jobs.
So I am proud that New Jersey is now a leader in
environmental protection and a national example of that
important link between healthy environment and healthy economic
growth.
At Johns Hopkins I devoted myself to improving the
application of science to decisionmaking. As Director of the
Risk Sciences and Public Policy Institute, I worked to advance
the science of evaluating risks, and I am proud to have trained
many of the emerging leaders in public health and environmental
science. Hopefully, some of them are watching here today.
Along with my colleagues, I worked very closely with State
and local officials and our Federal agencies on a number of
critical national issues, including terrorism response and
emergency preparedness, chemical exposures to our troops, the
toxic flood waters of Katrina, nuclear waste clean up, and
keeping our food supply safe.
Through the National Academy of Sciences, I also work with
science leaders from all sectors to provide guidance to EPA on
risk assessment. And I was not shy about pushing the EPA to do
better science. I have deep respect for the work of the Agency,
and my respect has grown even deeper since joining the Agency.
Science is indeed the backbone of EPA decisionmaking and
has been the foundation of our national progress. I believe
that those tasked with making these decisions about
environmental protection need to be informed with the best
science, science that is credible, transparent, and inclusive.
If confirmed, I look forward to working with members of the
committee and the stakeholders to make sure we are asking the
right questions and getting the best scientific answers.
So, Chairman Inhofe and members of the committee, I want to
thank you for this opportunity to meet with you today. I also
want to express my thanks to my wife, Marguerite, who is here
with me today, who typed my Ph.D. dissertation and has been
with me all the way.
Senator Inhofe. Have her hold her hand up. I need to see
this. There you are. All right.
Mr. Burke. And I am happy to answer any questions. Thank
you again.
[The prepared statement of Mr. Burke follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you very much, Mr. Burke.
Let me first ask two questions of Ms. Dunkin. The first
one, I don't want a verbal answer, I just want to have it for
the record, and then I will expect a written answer, because if
it is a verbal answer, it is going to take up all the time, I
am afraid.
When I was last the chair, I mentioned this in my opening
statement, it was 10 years ago or 8 years ago, one of the
concerns I had was to reform grants management, one being the
creation of an online grants database.
Now, we have done that; however, from all indications I get
from everyone who has tried to use this, it is not user-
friendly, it is difficult and time-consuming to find
information on a specific grant or grantee, and it is hindering
the public's access to a lot of this important information.
I guess what I am going to ask you to answer for the record
is, as the chief information officer managing the EPA's
capabilities, what steps have you taken to make the grants
database more user-friendly and what will you do, since I don't
believe we have accomplished that so far, to accomplish that.
OK?
And then, second, in March 2015 there is a court opinion.
Federal District Court Judge Royce Lamberth found that ``The
EPA continues to demonstrate a lack of respect for the FOIA
process'' and that EPA perceived the FOIA requester, the person
under the Information Act in that case, and that was the
Landmark Legal Foundation, the EPA perceived that as an enemy
because of its conservative political affiliation. Now, this
seems similar to some of the things the IRS scrutiny to
conservative groups.
What do you think about that? Is the judge right, Ms.
Dunkin?
Ms. Dunkin. First of all, Chairman, we will get you a
written answer for your first question.
The second question, so the actions in that particular case
happened primarily before I joined the Agency, so I can't speak
to that particular case.
Senator Inhofe. No, that is not quite true, because I am
talking about, wasn't it March 2015?
Ms. Dunkin. Mr. Chairman, I can only speak for my position,
which is that from my standpoint of running the tools that we
provide for FOIA and running a small number of FOIAs out of our
office, we provide the best possible responses we can to FOIAs
to the offices that respond to them and we, as an Agency,
expect that people will provide timely and correct responses to
FOIA requests.
Senator Inhofe. OK, now, you were in the position on March
15th, is that correct?
Ms. Dunkin. Yes, sir.
Senator Inhofe. Well, why did you just initially say that
that was before my time, or whatever it was you said?
Ms. Dunkin. So, Senator, the decision happened in March;
however, what I was referring to was the activities that
preceded the decision happened primarily before I joined the
Agency.
Senator Inhofe. OK, then I would ask you one more time: is
the judge right?
Ms. Dunkin. Senator, I could not speak to the history of
that case. Certainly, that is not the attitude that we have to
FOIAs in the Agency.
Senator Inhofe. Ms. Dunkin, what steps has the EPA taken to
ensure that requesters are treated in a professional manner,
without regard to the requester's identity or political
affiliation? Because you must have, after a statement like
that, I am hoping you would try to put something in place to
preclude that from happening again. Have you?
Ms. Dunkin. Senator, first of all, we have centralized much
of the search capability, and OEI helps provide search
responses to the offices that actually respond to the FOIAs. In
addition, all FOIAs have two levels of review to ensure that
the documents being released and any redactions to those
documents are completely fair.
Senator Inhofe. OK.
Ms. Nishida, for the record, I want you to get your same
response to the questions that I had of Ms. Dunkin, OK?
I want to get some information as to how much money the EPA
as a whole spends annually on efforts, now, we are talking
about grants, technical assistance, technology transfers,
development of standards, or programs, regulations, to improve
the quality of the environment outside of the United States or
in grants to foreign countries.
Can you give me that now? Have you looked into that?
Ms. Nishida. Yes, Senator, I can give you the answer.
Actually, there is a very small proportion of EPA's grants
actually go to international grants, it is less than one-half
of a percent. And of that less than one-half of a percent, a
large portion of those grants actually go to U.S. institutions
who help countries overseas in terms of addressing their
environmental pollution problems.
Senator Inhofe. All right. Now, what I would like to have
you do is, you are saying this, I believe you, but I would like
to see the documentation as to the amount, how you come up with
that percentage, and then I would like to be able to visit with
you about that issue, if that is all right, OK?
Ms. Nishida. Certainly.
Senator Inhofe. Then, Mr. Burke, if you don't mind, I will
take just a few more seconds here and I will sit out for a
second round.
The National Academy of Sciences have previously reported
that if an assistant administrator of the Office of Research
and Development, ORD, is also a science advisory to the full
Agency, it creates a conflict of interest. Do you think it
does?
Mr. Burke. No, sir. I was part of the discussions with the
National Academy even before becoming science advisor, and I
think we have the support of the Board on Environmental
Studies.
Senator Inhofe. No, they said it creates a conflict of
interest. Are you saying that that is not what they said?
Mr. Burke. No, I am not, Senator. I am just not familiar
with that particular statement.
Senator Inhofe. Did you say you were on that at the time?
Mr. Burke. I served two full terms on the Board on
Environmental Studies. And I know that there have been
different perspectives on science advisor being separate from
the assistant administrator. I think the most important
message, though, is that there be clear and consistent
leadership for science at the Agency.
Senator Inhofe. Well, I think in light of the fact that NAS
made a recommendation and you disagree with that
recommendation, and my time has expired, but I would like to
have you, for the record, give me the detail, as much as you
can, on that as to why you would disagree with the NAS. Would
you do that?
Mr. Burke. I would be happy to provide that.
Senator Inhofe. Thank you very much.
Senator Boxer.
Senator Boxer. Well, good for you for being an independent
person.
Let me just say this. We have voted the three of these
people out by voice vote. I want to make a point. I have not
seen, in my lifetime, three people who were overly qualified
for the jobs for which they have been nominated. If we can't
get you people moving toward the floor, I don't know who would
be better. And I just want to thank you from the bottom of my
heart for putting up with all this stuff, for sitting around
for months.
Mrs. Burke, Dr. Burke should now type his own papers.
[Laughter.]
Mr. Burke. I do.
Senator Boxer. All right. Because my husband still asks me
to type things for him, and it really gets me, since he was a
clerk typist when he was in the Army. But he said he never
really did learn to type over 30 words of a minute or so.
Senator Inhofe. You know, I was a clerk typist, too.
Senator Boxer. Well, that explains a lot.
Senator Inhofe. No, I am older than he is.
[Laughter.]
Senator Boxer. OK, so here is the thing.
Ms. Dunkin, I am not going to ask any questions of Jane and
Thomas. We voted you out before. I want you to get to where you
want to be to help this Agency, which is the subject of a
tremendous amount of criticism here. So why not have the best
people? By the way, independent voices and thinkers are
important.
But I just wanted to ask you, Ms. Dunkin, just because of
our tie to California, because you worked for a very innovative
company. You worked for a great school district. For that I am
grateful to you, because you pointed out you had a moment in
your life where you decided you wanted to go help children and
the public. It is a wonderful transformation.
So I wanted you to say for the committee how your
background and experiences working for the Unified School
District, how did it help shape you and get you ready to do
this job at the Office of Environmental Information.
Ms. Dunkin. Thank you, Senator Boxer. Working for the
school district was a tremendous privilege, helping out the
children in Palo Alto. The opportunity to work for the district
gave me two things that helped prepare me for this job. No. 1
was public service experience. A lot of people come into an
agency like the EPA from the private sector and they make a lot
of mistakes because they don't know how the public sector
works.
So while the Federal Government and the State of California
don't work exactly the same, there are enough similarities that
I knew where the land mines were when I arrived and I knew what
to expect in terms of how things would operate and what
questions to ask. So No. 1 is that public sector experience did
that.
The second is that it was the first time in my career where
I had run IT for an entire organization. I ran some big chunks
of IT for HP, but it is a very different experience to run one
end of the organization to another and be fully responsible for
everything from making sure that you have Internet connectivity
to making sure that you have applications for the students to
use. So that was a really great experience that prepared me to
step into another job with that same type of responsibility.
Senator Boxer. Well, thank you.
Well, Mr. Chairman, I am hopeful that we can move these
three people forward. Sometimes we all attack agencies and kind
of amorphous organizations. Here are three people; each of them
has a family that is proud of them, each of them has worked
hard in their life to get where they are, and they are at a
point where they really want to give back. So I am hopeful.
You are a good man and I hope that you will help me get
these people to the floor and get them confirmed. Thank you so
much.
I need to run off; I have a meeting in my office now. If
there is anything that comes up where you want me to come back,
I will.
Senator Inhofe. Sounds good. All right.
Senator Boxer. OK. Thank you. Thank you so much.
Senator Inhofe. Thank you, Senator Boxer.
Next we will hear questions from Senator Boozman, but let
me just ask, do any of the three of you think it is
unreasonable to respond to the questions that I asked during my
time? Are they unreasonable questions? No? Thank you very much.
Senator Boozman.
Senator Boozman. Thank you, Mr. Chairman.
And thank all of you all for being here. We do appreciate
your willingness to serve.
Dr. Burke, I have worked to encourage collaboration and
work between the EPA and the National Center for Toxicological
Research. As you know, NCTR is an FDA laboratory based in
Arkansas. Regulatory science research organizations from around
the globe come to investigate, learn, and train at NCTR, and we
are very proud of that facility.
I know that you are very familiar with the work that has
gone on through your previous history at Johns Hopkins and
other areas. Can you tell us a little bit about your view of
interagency collaboration? These are tight budget times. Talk
here a little bit about working together. Specifically, will
you look for ways that EPA can support and work with NCTR to
perform collaborative work and research?
Mr. Burke. Thank you, Senator. Thank you for the question.
It is good to see you again.
Absolutely, these are tough times and these are times when
collaboration is more important than ever in the scientific
community. And as you state, the National Center, NCTR, has
been a leader in particular in chemical safety assessments and
nanotechnology. And there is a partnership that we have, along
with FDA, NCTR, the National Institute of Environmental Health
Sciences, but we can build more on that.
We all have a common goal of understanding more about
chemical safety, understanding how to better protect our food
and environment. The Center has been a leader and I look
forward to, if confirmed, and even as science advisor in my
current position, of promoting that not just for those
agencies, but because our States and other partners are really
dependent upon that.
Senator Boozman. Good. Thank you very much.
I appreciate that you have taken the time to review the
bipartisan EPA Science Advisory Board Reform Act. As a former
member of the SAB, your expertise is certainly valuable to us
and we appreciate your input.
I know that our bill is not perfect, and we are certainly
willing to make changes. You mentioned about credibility,
transparency, and how important that is. Will you commit to
work with us and members on both sides of the aisle so that we
can identify some common sense reforms that will strengthen the
SAB and ensure that the EPA's scientific process is strong and
credible?
Mr. Burke. Absolutely, Senator. Our goal is credibility and
transparency. We have to have the highest level of review and
the highest credibility in our science. These are important
decisions and we are providing the basis for very tough
choices, so I am very happy to work with you on that.
Senator Boozman. Good.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Boozman.
Senator Capito.
Senator Capito. Thank you, Mr. Chairman.
I want to thank all of you for your service and for the
long process that you have had to go through.
I wanted to ask Ms. Dunkin, there was a report and The New
York Times ran a story about how EPA may have violated Federal
law in its use of social media in connection with the Waters of
the USA rulemaking. I read it at the time, but I have been
curious to know, was that something that was organically grown
in the Agency or something that was promoted from the top? I
would just like to hear your perspective on this and if you
have put guidelines in place to either stop that or had legal
advice given in terms of how that issue might be impacting in
the future.
Ms. Dunkin. Senator, the social media outreach program is
run through the Office of Public Affairs, so I can't speak to
the details of any program they run. We do have a social media
use policy in place in the Agency.
Senator Capito. Was that in place when this was occurring,
or are you not familiar?
Ms. Dunkin. The policy was in place. The IT policy was in
place at that time, yes.
Senator Capito. OK. So I am asking the wrong person, I
guess, is my answer.
Ms. Dunkin. I am sorry, Senator.
Senator Capito. OK.
Let me ask you this, too. We are considering a
cybersecurity bill on top of our RNDAA bill today. We know this
is just a rampant problem everywhere internationally and we saw
where OPM's records were corrupted just recently. I am sure
this has great concern for you. What are you doing at EPA to
try to protect against cyber crime and making sure? Because I
think the inspector general maybe has questioned some of your
security policies in this area.
Ms. Dunkin. Yes, Senator. We could probably talk about
security all day. We are working hard to ensure the security of
the information assets at the EPA. Just a few of the important
points that we consider. We need to know what is most important
to secure, because if we don't set priorities nothing will be
secured.
Senator Capito. Right.
Ms. Dunkin. We are implementing appropriate controls and
hygiene activities, things like patching systems, things like
ensuring that systems have authority to operate before they are
in place and that we know what the risks are with those
systems. We focus on controlling access, educating users, and
then we want to make sure that we monitor our network so that
we know if something happens and that we can respond to that.
Senator Capito. So has OPM shared what actually happened
with them with other agencies as a preventive measure for you?
Ms. Dunkin. We know some of what happened at OPM at this
point. We don't have all the details.
Senator Capito. Because I would think that would be a
useful exercise.
Ms. Dunkin. Yes. And we share throughout the security
community and through the CIO community. There is a lot of
information sharing that goes on. And there is public
information, there is less public information, and there is
classified information.
Senator Capito. OK. All right, thank you.
Dr. Burke, I am from the State of West Virginia and we have
had some issues with your agencies I am sure you are well
aware. I understand that you are the head science guy here. So
the argument a lot of times that I try to make is that science
is great and welcomed, and we want it. That is great. But there
are always economic aspects of every decision that is made,
particularly in my State by your Agency.
And I think I know the answer to this, but I just wanted to
get it out there. Within the realm of your responsibilities, do
you ever look at the economic impacts of what the science would
have in terms of a decision that is made based on your science?
Does everybody ever get in the room and discuss that?
Mr. Burke. Well, certainly the Agency does. The role of the
science, though, is to really provide one very important
cornerstone of that decisionmaking process, and we generally
focus upon the scientific evidence, say, for instance, of an
environmental impact. But, really, the Agency decisionmaking,
and my colleagues in other branches of the Agency, the
economists and others, very much consider the big picture in
the decisions within the guidance provided by the statutes.
And in the analysis of risks, it is also important that we,
the scientists, get the right question so that those making
those tough social decisions can understand the impacts across
the board.
Senator Capito. And over time, you have been in this
business a long time, have you seen a lot of change in terms of
the intensity of the risk of certain things that maybe in the
1960s were thought to be very, very hazardous that now, as time
has gone on and more research and development has gone forward,
may be not as hazardous, and vice versa? Does that change over
time much, or is the first blush pretty much the last blush?
Mr. Burke. That is a good question. In science, the first
blush is rarely the last blush; there is always an evolution of
the science. And sometimes we understand how things work
together to transition risks, so sometimes we will actually,
perhaps may be less concerned. Oftentimes we learn of new
emerging hazards, too.
So that is why it is important, I think, to have state-of-
the-art science and be able to respond to not just emerging
threats, but continually update our knowledge of those
longstanding things so that we can make the best decisions,
work with the social scientists and others to really make the
best societal decisions.
Senator Capito. OK. Thank you so much.
Senator Inhofe. Thank you, Senator Capito.
Senator Fischer.
Senator Fischer. Thank you, Mr. Chairman.
And thank you all for being here today.
Mr. Burke, could you comment on the advantages and the
disadvantages that you see in the process that the SAB uses
when you provide advice to the Agency?
Mr. Burke. Sure. First, let me talk about the great things
that the SAB does.
I have been privileged to be a two-term member of the SAB
as an academic researcher before joining the Agency, and I have
also been very active at the National Academy. And I think they
are really the gold standards in peer review, the most
prestigious and influential bodies to really make sure we get
our science right. So I am very supportive of the SAB.
That said, it is important the SAB be credible, be
inclusive, and really represent the best expertise that we have
in this Nation, and sometimes internationally, to help us make
sure we have peer-reviewed our science, but also that we frame
the questions right and we use the best science available.
So I think I have a lot of respect for the SAB. It is a
tough process. I can tell you that as an academic scientist it
is tough to get people to commit to that. We wouldn't want to
add to the burden of scientists, say, from academia who have
really tough, challenging jobs. I think we should do everything
in our power to encourage people to volunteer and be part of
that process, and it is really an honor to be there.
But there are some impediments to the process. It is tough
to make that time commitment. It is an incredibly rigorous
process to be involved in a review of a major national report.
Senator Fischer. I agree with you that it is very, very
important to use the best science possible, and I thank you and
other scientists who work toward that goal and make that your
priority. I am curious on how you balance in social impacts.
That is more subjective. It is almost in opposition to many of
those hard sciences out there, don't you think?
Mr. Burke. Well, it is a very good question. Science,
traditionally, we have had lanes. I am an epidemiologist. We
look at the association between risk factors and disease. A
sociologist might look at those social factors that contribute
to disease. And I think in the evolution of our science of
decisionmaking, we are really looking at integrating all of
those things.
So many of my colleagues on the Science Advisory Board,
particularly the social scientists, would be very happy to hear
your question because I do think science is not just analytical
chemistry; science is understanding the social contributors to
the quality of life and the environment. And I think that is an
important direction for not just the SAB, but for the National
Academy we are recognizing that.
Senator Fischer. And since you have been at the EPA, can
you tell me how the Agency has used the SAB and how frequently
they use it?
Mr. Burke. Sure. Well, I have a limited time window, but
let me give you an example of a very, very important role the
SAB has.
Senator Fischer. Is it used often?
Mr. Burke. Yes. It is constantly used. You may have seen
that we released a major report, a draft report on the impact
of hydrofracking on our drinking water resources. We turned
that over to the SAB, a committee of almost 30 representatives
from the broad sectors of science, who are reviewing that to
make that we have used the best science, presented it clearly,
and that our conclusions are justified.
Senator Fischer. And that was a 4-year report, wasn't it?
Mr. Burke. Yes. It was a long-term, very tough effort. Very
comprehensive look.
Senator Fischer. And we appreciate the work that is put
forward in that.
How do you expect ORD's use of the SAB to change if you
would be confirmed? Do you see a change happening?
Mr. Burke. I think there is constant evolution. First of
all, the nature of the Board is that there are changes in
membership. But, for instance, one of my areas of concentration
has been risk analysis and risk assessment. The Board has
changed dramatically in the past 2 years to have a separate
subcommittee that really looks at how the Agency and really the
Nation does risk assessment. So it is constantly evolving to
address, I think, the Nation's toughest challenges, so we need
to constantly recruit the highest level of talent to serve on
that Board.
Senator Fischer. Well, I thank all three of you for your
willingness to serve. Thank you very much.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Fischer.
And thank all of you for the time that you have taken.
I say to you, Ms. Dunkin, this idea of creating the
database was good, but I have been waiting 8 years now and
listening to complaints about how difficult it is to come up
with the results. And I know with your background and your
capabilities you will be able to come up with something.
I say this to all of you working jointly. That is something
that I think the public is entitled to and we are entitled to.
So if you will do that as thoroughly as you can so that
hopefully we will be able to come up with something that we
started some 9 or 10 years ago.
We appreciate all of you.
Senator Sullivan has come and we are still in the middle of
the hearing, Senator Sullivan. We will recognize you for
questions you have.
Let me just fill you in. One of the concerns I had was the
database. I have been concerned about that ever since we were a
majority some 8, 9 years ago; and they are going to be working
on that.
Also, I questioned the possibility of a conflict of
interest to Dr. Burke, and he is going to be filling us in on
some of those details. We also mentioned the Federal district
judge and some of the comments that he made or observations
that he made in terms of responses that some of the people
under FOIA are trying to get.
So that fills you in on what we were talking about.
Senator Sullivan. Thank you, Mr. Chairman.
I want to thank each of the nominees for your service to
the Country and willingness to serve. You probably have family
members here, and I know that sometimes that can be an arduous
process. I so appreciate your wanting to serve.
I know many of you are already in an acting capacity, but
maybe if I can just, for each of you, Mr. Burke, Ms. Dunkin,
Ms. Nishida, can you just real quickly, I always like to ask
nominees why they want to serve. What motivates you? You are
going to have to come in front of this committee, get asked
some tough questions. Why do you want this position?
Each of you, please.
Ms. Dunkin. Thank you, Senator. I chose to take this
opportunity to serve my Country because I felt like I had
entered public service in my previous job, but that the
opportunity was very localized, as I worked at a school
district, and it was an opportunity to have a broader impact.
The Federal Government certainly has opportunities for
improvement in IT, and I felt I could contribute to that.
Senator Sullivan. Thank you.
Ms. Nishida. And, Senator, from the number of years that I
worked in the State of Maryland and also at The World Bank, I
saw firsthand how environmental problems affect both Tribal
Nations, as well as foreign governments, and I want to be able
to address those concerns working in the Office for
International and Tribal Affairs.
Senator Sullivan. Great. Thanks.
Mr. Burke. Senator, I know this is going to sound a little
corny, but I think being the head scientist for ORD and working
with that team is the best job in my field; it is the best job
in the world. I walked away from a full professorship and a
deanship at a pretty good university.
Senator Sullivan. Which one was that?
Mr. Burke. Johns Hopkins.
Senator Sullivan. All right.
Mr. Burke. And I did that because of the incredible
opportunity to serve this Nation and to really be a part of the
leadership team of what I think is the leading research
organization in not just this Country, the entire world.
Senator Sullivan. Great.
I am going to raise a couple issues that I think are
important, but you are not necessarily in charge of them. But I
think if you saw this debate yesterday, when we marked up the
Waters of the U.S., there is a certain frustration, certainly
in my State, where we have the cleanest water, cleanest air
probably in the Country. Yet I don't think a lot of Alaskans
think it is because of the EPA. I think a lot of Alaskans think
it is because of our own State and local government. We really
care about these issues.
Sometimes you hear on this committee, oh, this side cares
more about the environment than that side. That is not true; we
all care about the environment. But we also care about the
Constitution, oversight, the rule of law.
One of my frustrations, and I raised it the first time we
had an oversight committee hearing with the Administrator was,
do you believe, she actually believed it, so I am sure you do,
that every regulatory action, any action that you take as the
EPA has to be based in the statutes, in the congressional
direction. Do you agree with that? Your boss did, so you
probably should just say yes. Do you?
Mr. Burke. Again, as a scientist, it is a little out of my
range of responsibility.
Senator Sullivan. I know.
Mr. Burke. But I support the Administrator.
Senator Sullivan. You know what, you don't have to answer
that question, because I know it isn't in your realm. But the
answer is yes, right? Every regulatory action, executive action
that the EPA takes has to have a basis in the statute, has to
have a basis in the law. The U.S. Supreme Court made that clear
again last year in a case that was brought where they found
that the EPA did not act according to the law.
So there is a lot of concern on this committee, and I would
say in the Congress in general, that the EPA is not always
doing that, so I asked the Administrator if she could make sure
that every action that they have taken is based in the law, and
she can assure me of that.
So I have asked for, for example, the legal opinion on the
Waters of the United States. Big deal, what provided that. She
hasn't provided that to me yet.
The chairman and I, Senator Rounds, we asked in a letter to
her to respond to this issue on the front page of The New York
Times a couple weeks ago. She hasn't responded to that.
Even yesterday, a pretty big deal that the EPA has decided
now, to regulate emissions from aircraft. Again, I asked the
Administrator at the outset, hey, if you are going to take
action, you need to show us where your authority is in the law.
Certainly got nothing from them on that.
So my question is, in terms of an oversight capacity that
we have here, in terms of the advice and consent constitutional
role that we have to confirm you and your positions, do you
think it is a legitimate exercise of our authority, as the
Congress, as the oversight committee, to put a hold on your
nominations and confirmation until we actually get legitimate
answers from the Administrator on, for example, the Waters of
the U.S. legal opinion? She won't give that to me. It is crazy.
This letter that the chairman and I wrote a couple weeks
ago, stonewall. Legal opinion. I would really like to see the
legal opinion on the EPA's authority to regulate emissions from
airplanes. I know they are basing that on some kind of
international agreement. Last time I checked, the EPA's
authority does not derive from international organizations, it
derives from the Congress and the Constitution.
So I know this is a bit of a tough question. I know that
you are not involved in these issues, but do you think that is
a legitimate exercise of our authority in the Congress, in this
committee, to say, you know, these candidates might be
qualified, they are certainly motivated to serve their Country,
but until we actually get answers from the head of the EPA, who
stonewalls this committee and this Congress, we are not going
to move forward on any nominations. Do you think that is a
legitimate exercise of our constitutional and oversight role?
Senator Inhofe. From the chair, I would like all three of
you to respond to that question, if you would.
Ms. Dunkin. Senator, I don't feel qualified to speak to the
procedural issues of this body.
Ms. Nishida. Like my colleague, I am also not qualified to
speak to the procedural issues. But I can tell you with regards
to the actions that my office takes, it is consistent with the
laws of the United States.
Senator Sullivan. Look, I don't doubt what you are saying,
but when you are just saying it and you are not showing it to
us. Several years ago the EPA said that the actions that they
were taking under the Clean Air Act were consistent with the
laws of the United States. At the time I was the attorney
general of the State of Alaska. I was one of a group that sued
and said, actually, we don't think you are right. That went all
the way to the U.S. Supreme Court. Last year, the Supreme Court
said the EPA didn't have that authority; the EPA was violating
the Constitution. The EPA was trying to take powers away from
this body.
So, as you can imagine, it is not just us talking in terms
of hypotheticals; there are real instances of the EPA usurping
the power of the Congress. And when we ask the Administrator
for legal opinions on additional actions like the Waters of the
U.S., 35 States oppose that, a lot of questions about whether
that is legal and the EPA's legal authority. I have been asking
the Administrator for months, for months, for the detailed
legal analysis that provides the EPA the legal authority to
issue the Waters of the U.S. rule, and she won't provide it to
this Congress.
So now the EPA wants the Congress to confirm you. But my
question is should we say, now, wait a minute, you are not
getting back to us on anything. Our oversight role, our role in
the U.S. Constitution, pretty important, advice and consent for
senior officials of the United States, which you would be, and
yet we get blown off by the EPA on this letter.
The chairman of this committee sent the EPA Administration
a letter 2 weeks ago on a real big issue, front page of The New
York Times saying the EPA might be violating the law. As far as
I know, haven't heard back from her. My question is on the
legal opinions, nothing else.
So I am just wondering if you think it is a fair function
of this committee to say, hold off, we are not going to move on
any nominations until we start getting answers from the EPA. Do
you think that that is legitimate?
I know you are not lawyers. I know you are scientists, but
you are also smart in the ways of Washington.
Mr. Burke, do you think so?
Mr. Burke. Senator, I am sorry, I do not have the expertise
or experience. It is an important question, but I do not have
the knowledge to really answer that. As a scientist, I really
cannot answer that.
Senator Sullivan. OK.
Well, Mr. Chairman, sorry I went over, but I think it is an
important issue. And I will just tell you, we all want clean
water, we all want clean air. Like I said at the outset, my
State, we live in the most pristine State in the world,
beautiful place, cleanest water, cleanest air. We all want
that.
But I will tell you this, and this is not a partisan thing,
this is the vast majority of the people who live in my State
are very concerned about the actions of the EPA in large
measure because Alaskans don't think that the EPA is abiding by
the law or the Constitution. And I committed to my constituents
to ask harder questions about this, and I have.
And guess what? We get stonewalled. And we are the
oversight committee. We are the committee of jurisdiction and
we write the laws, not the EPA. And I don't think that is clear
to the Administration. So this is an opportunity for her to
maybe come up with some answers as we move forward to look at
important dedicated public servants like yourselves.
I know these are hard questions that are not necessarily in
your realm. I don't want to at all kind of impinge your very
strong credentials and your commitment to your Country and
service. I really appreciate that. That is why I asked the
question at the outset. But in some ways you are a bit in the
crossfire of what I think is actually a really, really
important issue that your boss seems to ignore, and that is not
acceptable.
Thank you, Mr. Chairman.
Senator Inhofe. I would expand on that a little bit in just
saying, looking at it, recognizing your area of expertise, what
other leverage do we have?
You know, at the beginning of this committee hearing I
asked you do you agree, if confirmed, to appear before this
committee or designated members of this committee or other
appropriate committees to provide information subject to the
appropriate and necessary security, and all of this. You all
responded positively. So did she. This is the same oath of
office that we got from her.
And I think that when someone does not do what they have
said that they would do, so help me God, what else is there for
us to carry out the oversight provisions? I don't know of any
other leverage that we have.
So I think it is very appropriate that you bring this up.
I was asked to, one of the members who was not able to be
here, you might remember, Dr. Burke, that when Senator Barrasso
was questioning you back in December 2013, that was a
nomination hearing, he asked some questions. Let me just read
it, I don't want to get this wrong. The National Academy of
Sciences cautioned against relying on decades-old data for
developing new national ambient air quality standards. That is
the NAAQS that we are talking about.
Following your December 17th, 2013 nomination hearing, you
committed to ``reviewing this issue and working to ensure the
integrated science assessments that provide the foundation for
NAAQS decision reflect the best possible science.''
I would say this, I don't think that he has actually heard
a response. I would like to have you bring that up and also say
what steps you have taken since becoming the EPA's science
advisor to ensure that these science assessments no longer use
outdated material. This is 30 years old, this scientific basis.
What can I share with Senator Barrasso, your response to
me?
Mr. Burke. Thank you for the question, Senator. Since I
have been there, there continues to be tremendous progress in
our National Center for Environmental Assessment in those
integrated science assessments. In fact, in a sense, the major
report on fracking is an integrated assessment. The NAAQS are
integrated assessments. And it is our commitment, and there has
been tremendous progress in doing that, to revisit and
constantly upgrade the science.
So to my knowledge, we are making very good progress on
that in support of the decisionmaking being inclusive and being
up to date.
Senator Inhofe. Well, he goes on to ask the question. He
said during that same nomination hearing you committed to
making underlying data used to justify EPA rulemaking public.
So I would ask you, now, that has been 2 years ago, roughly.
What have you done since that time in terms of fulfilling that
commitment?
Mr. Burke. OK, first, I was still a dean 2 years ago and I
have been with the Agency 5 months. But we have really worked
on that, and I have been directly involved with the group
working not just in the Agency, but throughout the
Administration, with the guidance from the President's science
advisor, to improve data access.
We are systematically looking at ways that we can make sure
our research and the research results of the folks who receive
grants from us can be made more accessible; that all of the
published reports, the metadata is out there for people to look
at, to feel confident in, because we feel that transparency is
really the only way to be credible in science. There has been
tremendous progress and I would be happy to provide more
details on that.
Senator Inhofe. OK, I would like to ask that you provide
those details directly to Senator Barrasso, because he is
wanting that information.
Mr. Burke. Be happy to, Senator.
Senator Inhofe. Now, when Senator Capito was talking and
asking questions, it sounded like you told Senator Capito that
science is never settled.
Mr. Burke. Science continues to evolve constantly.
Senator Inhofe. Would you agree that climate science is not
settled, then?
Mr. Burke. That is an excellent question, Senator. We
continue to learn more every day. I think that there is great
consensus in the scientific community that our climate is
changing, but I think we continue to learn more about the
mechanisms and, most importantly, about resilience to climate.
Senator Inhofe. Well, I would suggest to you no one
disagrees climate is changing. That is not the issue. Is it
manmade gasses that are providing a major reason for that
change to take place?
You have answered the question, that is, that science is
never settled. That is good.
Well, I want to thank you again.
Senator Sullivan. Mr. Chairman.
Senator Inhofe. Yes.
Senator Sullivan. Is it all right, just a few more
questions?
Senator Inhofe. As many as you want.
And that is for anyone else who comes down, too. That is
our policy.
Senator Sullivan. So I do want to kind of, again,
emphasize. You may have seen this Utility Air Regulator Group
v. EPA. It was a Supreme Court decision from last year. If you
haven't read it, I would highly recommend it, even though that
is not in your area of expertise. I would highly recommend you
read it because it is important. A lot of important quotes
here.
Justice Scalia, who wrote the controlling opinion, stated,
``It is patently unreasonable, not to say outrageous, for the
EPA to insist on seizing expansive power that it admits the
statute is not designed to grant.'' This was just a year ago
that that happened.
So, again, sometimes people say, oh, this is hypothetical.
This is not hypothetical at all. The highest court in the land
said to your Agency, you are usurping the power of the
Congress. And a lot of us believe that is what is going on in
the Waters of the United States rule, which is why we are
taking appropriate action. This committee, yesterday, marked up
a bill that would make sure that the EPA doesn't commit that
kind of act.
Again, this is the May 22nd letter. I would like to submit
this for the record, Mr. Chairman.
Senator Inhofe. Without objection.
[The referenced letter follows:]
U.S. Senate,
Washington, DC,
May 22, 2015.
Hon. Gina McCarthy,
Administrator, Environmental Protection Agency,
Washington, DC.
Administrator McCarthy: We write to express concerns over a report
that the Environmental Protection Agency (EPA or Agency) may have
conducted an unprecedented lobbying and propaganda effort on behalf of
the ``Waters of the United States'' rulemaking.
As you know, many of the rules that are being pushed by your agency
are controversial--including the rule to expand the scope of ``Waters
of the United States'' under the Clean Water Act--and are expected to
have devastating effects to the economies of many states. ours
included. That's why a majority of states have demanded that the
``Waters of the United States'' rulemaking be retracted or
substantially revised before being finalized. More than 300 groups and
associations from across the country--including the American Farm
Bureau Federation. the National Association of Home Builders, and the
National Mining Association--are also fighting it.
However. in public testimony and in private meetings, EPA officials
have consistently disregarded those concerns. and instead have sought
to highlight the alleged public support for the rule. The Agency, along
with many groups supporting the rule, have consistently said that it
has received more than 1 million comments on the rule, and about 90
percent of those comments are supportive.
In fact, you testified at the Senate Environment and Public Works
Committee in March, ``We have received over 1 million comments, and
87.1 percent of those comments we have counted so far--we are only
missing 4,000--are supportive of this rule.'' And then for emphasis,
you repeated the claim.
According to a May 19. 2015 New York Times article, the EPA
embarked on an unprecedented and questionable lobbying campaign to
generate public comments in support of this rulemaking. EPA has used a
variety of social media tools to promote the importance of the Agency's
rulemaking efforts and to solicit these comments, including, but not
limited to ``Thunderclap'' to create a ``virtual flash mob,'' YouTube
videos. and the ``#CleanWaterRules'' and ``#DitchtheMyth'' hashtags on
Twitter.
A deeper look at the ``1 million comments'' claim shows a more
complicated story. According to the U.S. Army Corps of Engineers, only
20,567 of those comments are considered ``unique'' and of those, only
10 percent were considered substantive.
In other words, the vast majority--more than 98 percent of the
comments received--appeared to be mass mailings, the majority of which
were likely generated by your agency's unprecedented lobbying efforts.
All of the unique ``substantive'' comments were reviewed by the
Corp of Engineers. It found that contrary to EPA's characterization, 39
percent of those comments are supportive of the rule, while 60 percent
are opposed to it.
It is troubling that the EPA--which should be an unbiased source of
information--is using taxpayer dollars to use social media for lobbying
and propaganda purposes to promote the importance of this rulemaking
and the Agency itself to the American public and lawmakers, in possible
violation of the Anti-Lobbying Act, 18 U.S.C. section 1913, and
appropriations restrictions against lobbying and propaganda. Given
these facts, please provide answers to the following questions and all
requested documents no later than June 5, 2015:
Given the statements from the Army Corps of Engineers that 60
percent of substantive comments were opposed to the proposed ``Waters
of the United States'' rule, please explain whether the statements made
by EPA officials that approximately 87 percent of comments received
support the rule meet the requirements of the Information Quality Act.
Prior to undertaking your agency's unprecedented PR campaign to
fight for the Waters of the U.S. rule, did you seek a legal opinion
regarding the legality of this campaign from anybody in your agency or
from the Department of Justice or other federal officials? If so,
please include a copy of any legal opinions received by EPA counsel,
the Department of Justice, or other federal officials.
Who is the EPA official or officials responsible for approving
content disseminated on Twitter, YouTube, Facebook, and other social
media platforms? Please describe the internal legal and policy review
processes EPA uses for approving such communications.
What are the EPA's policies concerning the use of social media to
interact with the public and to promote agency activities and
rulemakings in compliance with laws prohibiting lobbying and
propaganda? Please provide copies of any such policies.
Approximately how many staff hours have been devoted toward
public relations, lobbying, and propaganda efforts in support of the
``Waters of the United States'' rule?
What was the cost to the taxpayers for these efforts? In
estimating staff hours and costs spent on efforts, please include costs
spent on contractors, for the Thunderclap for the ``Waters of the
United States'' rule, the ``Ditch the Myth'' and ``Clean Water Rules''
campaigns, the YouTube and Twitter videos and statements designed to
undermine critics of and to elicit public support for the proposed
rule, including posting videos produced by the Choose Clean Water
Coalition urging EPA to adopt the clean water rule.
At a hearing on March 4, 2015, we asked you to provide the legal
analysis that you used to formulate the ``Waters of the United States''
rulemaking. Please supply that analysis along with the answers to the
above questions.
We look forward to your timely response. Please have your staff
contact the Committee on Environment and Public Works at (202) 224-6176
with any questions.
Sincerely,
James M. Inhofe, Chairman, Committee on Environment
and Public Works; Dan Sullivan, Chairman,
Subcommittee on Fisheries, Water, and
Wildlife; M. Michael Rounds, Chairman,
Subcommittee on Superfund, Waste
Management, and Regulatory Oversight.
Senator Sullivan. This is from the chairman, myself,
Senator Rounds asking the Administrator a number of questions
with regard to a front page New York Times article indicating
the EPA may have broken the law. No response.
Waters of the U.S., the legal opinion, been asking that for
months. They issued the rule anyway. Just kind of ignored us.
No response.
And then I do think one of you actually has had some kind
of role in the public records issue, but you may have seen a
Federal judge in the U.S. District Court was quoted as saying,
with regard to a recent lawsuit, ``The court is left wondering
whether the EPA has learned from its mistakes or if it will
merely continue to address FOIA requests in the clumsy manner
that has become its custom. Given the offensively unapologetic
nature of the EPA's recent withdrawal notice, the court is not
optimistic that the Agency has learned anything.''
So have you learned anything? That is a pretty severe
rebuke from a Federal judge, actually, a very well respected
Federal judge, Royce Lamberth, who has been a Federal judge in
Washington in the Federal court here for many, many years. That
is pretty strong language.
Were any of you in charge of that or had anything to do
with that lawsuit? And have you learned anything from what the
judge was clearly troubled by?
Mr. Burke. I am sorry, Senator, I was not involved in any
way.
Senator Sullivan. OK.
Ms. Dunkin. I was also not involved with that lawsuit.
Ms. Nishida. Senator, I was not involved with the lawsuit
either.
Senator Sullivan. OK. So that does relate to FOIA requests,
where I know, and it looks like there has been some lost emails
now and all the kind of things that, to be honest, makes the
Congress and the citizens of our great Nation skeptical of what
is happening.
I just want to ask, finally, for the record here, if you
are asked in your capacity, if you are confirmed, to be
responsive to the committee that has oversight here, but also
to the Congress, which, of course, has oversight, will you
commit to do that? Unlike your boss, who I believe just
stonewalls the Congress and this committee, and that is very,
very troubling to me, will you commit to be responsive in a
substantive and timely manner to the requests of this
committee? Can you commit to that to us? Each one?
Mr. Burke. Yes, Senator.
Ms. Dunkin. I also commit to that, yes.
Ms. Nishida. Yes, Senator, we will.
Senator Sullivan. Great. It would be helpful, when you go
back to the EPA, to pass on that message to the Administrator,
that it would be helpful if she were responsive, thorough and
timely in the requests from this committee and from the
Congress, because right now she hasn't been.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Sullivan.
Sometimes when someone who is a level down from the
Administrator gets a request, they will feel it is necessary to
feed that response through the Administrator. Now, what the
Senator is asking you is, are you going to respond to our
requests directly to us, not filtering it through the
Administration? That would be the question I would ask. Would
you do that?
Ms. Dunkin. Senator, I will follow the procedures the EPA
uses to respond working through our Office of Congressional
Affairs.
Senator Inhofe. I don't know what that procedure is. Does
that procedure preclude you from having a direct response to
our questions as an oversight?
Ms. Dunkin. We will work through Office of Congressional
Affairs and then we respond directly.
Senator Inhofe. So is your answer the same, that you don't
have a direct responsibility to respond to questions from an
oversight committee?
Ms. Dunkin. No, sir. We will respond.
Senator Inhofe. Directly to us?
Ms. Dunkin. Yes.
Senator Inhofe. All right.
Do you agree with that, Ms. Nishida?
Ms. Nishida. As indicated, we have an Office of
Congressional Affairs, and we work through the Congressional
Affairs Office.
Senator Inhofe. Well, I know that. I know that. But Ms.
Dunkin qualified that and said, yes, she would do that directly
with us. I am not very comfortable when we ask you a question
and you respond to your office instead of responding to us. Do
you have a problem with responding directly to us and will you
do that?
Ms. Nishida. Again, Senator, we will work very closely with
our Office of Congressional Affairs.
Senator Inhofe. Is your answer no, then?
Ms. Nishida. Again, Senator, we will be responsive through
our procedures with the Office of Congressional Affairs.
Senator Inhofe. That is a pretty serious answer.
How about you, Dr. Burke? Will you respond directly to us
if we directly ask you a question in your capacity as
oversight?
Mr. Burke. Senator, I would be happy to be responsive to
any requests from the committee.
Senator Inhofe. Direct responses. So your answer is yes.
Mr. Burke. I will coordinate, obviously, as part of the
Environmental Protection Agency, I will coordinate with the
Agency.
Senator Inhofe. Well, you can coordinate all you want with
the Agency, but if we ask you a direct question, I just can't
imagine that anyone would say, as Ms. Nishida did, that, no,
the answer is no, I won't give a direct response. So you are
saying you will give a direct response. We are asking. I think
that is our constitutional duty and it is in the oath you just
took. So your answer is yes?
Mr. Burke. Yes.
Senator Inhofe. Thank you very much.
I want to thank all of you. This is a serious thing that we
are looking at.
And when I was following Senator Sullivan's questions and
trying to think of what leverage do we have to force someone to
do what they have sworn they would do in their oath of office,
I don't know what else we have.
But I appreciate very much your time, and that extends to
your family. Thank you very much for being here.
We look forward to getting the written responses that we
requested. We are adjourned.
[Whereupon, at 10:50 a.m. the committee was adjourned.]
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