[Senate Hearing 115-102]
[From the U.S. Government Publishing Office]
S. Hrg. 115-102
HEARING ON THE NOMINATIONS OF MICHAEL DOURSON, MATTHEW LEOPOLD, DAVID
ROSS, AND WILLIAM WEHRUM TO BE ASSISTANT ADMINISTRATORS OF THE
ENVIRONMENTAL PROTECTION AGENCY, AND JEFFERY BARAN TO BE A MEMBER OF
THE NUCLEAR REGULATORY COMMISSION
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
----------
OCTOBER 4, 2017
----------
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
HEARING ON THE NOMINATIONS OF MICHAEL DOURSON, MATTHEW LEOPOLD, DAVID
ROSS, AND WILLIAM WEHRUM TO BE ASSISTANT ADMINISTRATORS OF THE
ENVIRONMENTAL PROTECTION AGENCY, AND JEFFERY BARAN TO BE A MEMBER OF
THE NUCLEAR REGULATORY COMMISSION
S. Hrg. 115-102
HEARING ON THE NOMINATIONS OF MICHAEL DOURSON, MATTHEW LEOPOLD, DAVID
ROSS, AND WILLIAM WEHRUM TO BE ASSISTANT ADMINISTRATORS OF THE
ENVIRONMENTAL PROTECTION AGENCY, AND JEFFERY BARAN TO BE A MEMBER OF
THE NUCLEAR REGULATORY COMMISSION
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 4, 2017
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
27-172 PDF WASHINGTON : 2017
____________________________________________________________________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
JOHN BOOZMAN, Arkansas BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi SHELDON WHITEHOUSE, Rhode Island
DEB FISCHER, Nebraska JEFF MERKLEY, Oregon
JERRY MORAN, Kansas KIRSTEN GILLIBRAND, New York
MIKE ROUNDS, South Dakota CORY A. BOOKER, New Jersey
JONI ERNST, Iowa EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska TAMMY DUCKWORTH, Illinois
RICHARD SHELBY, Alabama KAMALA HARRIS, California
Richard M. Russell, Majority Staff Director
Gabrielle Batkin, Minority Staff Director
C O N T E N T S
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Page
OCTOBER 4, 2017
OPENING STATEMENTS
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 3
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 410
WITNESSES
Chabot, Hon. Steve J., U.S. Representative from the State of Ohio 410
Prepared statement........................................... 412
Dunn, Hon. Neal P., U.S. Representative from the State of Florida 414
Prepared statement........................................... 415
Dourson, Michael, Professor, Risk Science Center, Department of
Environmental Health, University of Cincinnati, College of
Medicine....................................................... 419
Prepared statement........................................... 422
Response to an additional question from Senator Barrasso..... 426
Responses to additional questions from:
Senator Carper........................................... 427
Senator Booker........................................... 445
Response to an additional question from:
Senator Capito........................................... 447
Senator Cardin........................................... 448
Responses to additional questions from:
Senator Duckworth........................................ 449
Senator Ernst............................................ 450
Senator Fischer.......................................... 451
Senator Markey........................................... 452
Senator Merkley.......................................... 454
Senator Sanders.......................................... 456
Senator Whitehouse....................................... 460
Leopold, Matthew, Counsel, Carlton Fields Jordan Burt, P.A....... 478
Prepared statement........................................... 480
Responses to additional questions from:
Senator Carper........................................... 484
Senator Cardin........................................... 489
Response to an additional question from Senator Markey....... 489
Responses to additional questions from:
Senator Sanders.......................................... 490
Senator Whitehouse....................................... 491
Ross, David, Assistant Attorney General, State of Wisconsin, and
Director, Wisconsin Department of Justice Environmental
Protection Unit................................................ 495
Prepared statement........................................... 497
Responses to additional questions from:
Senator Carper........................................... 501
Senator Booker........................................... 509
Senator Cardin........................................... 510
Response to an additional question from Senator Ernst........ 512
Responses to additional questions from:
Senator Markey........................................... 513
Senator Sanders.......................................... 514
Senator Whitehouse....................................... 519
Wehrum, William, Partner, Hunton & Williams LLP.................. 527
Prepared statement........................................... 529
Responses to additional questions from Senator Carper........ 532
Response to an additional question from Senator Cardin....... 556
Responses to additional questions from:
Senator Duckworth........................................ 557
Senator Ernst............................................ 560
Senator Fischer.......................................... 561
Senator Markey........................................... 562
Senator Merkley.......................................... 563
Senator Sanders.......................................... 569
Senator Whitehouse....................................... 572
Senator Wicker........................................... 587
Baran, Jeffery, (Reappointment) Commissioner, U.S. Nuclear
Regulatory Commission.......................................... 591
Prepared statement........................................... 593
ADDITIONAL MATERIAL
Letter to Senators Barrasso and Carper from Audubon Florida,
September 19, 2017............................................. 961
News Release from the Office of the Administrator, EPA,
Widespread Praise for Matt Leopold, Leopold Nominated as EPA
General Counsel, September 2, 2017............................. 962
News Release from the Office of the Administrator, EPA,
Widespread Praise From Environmental Officials for David Ross,
Ross Nominated to Head EPA Office of Water, September 2, 2017.. 964
HEARING ON THE NOMINATIONS OF MICHAEL DOURSON, MATTHEW LEOPOLD, DAVID
ROSS, AND WILLIAM WEHRUM TO BE ASSISTANT ADMINISTRATORS OF THE
ENVIRONMENTAL PROTECTION AGENCY, AND JEFFERY BARAN TO BE A MEMBER OF
THE NUCLEAR REGULATORY COMMISSION
----------
WEDNESDAY, OCTOBER 4, 2017
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m. in
room 406, Dirksen Senate Office Building, Hon. John Barrasso
(Chairman of the Committee) presiding.
Present: Senators Barrasso, Carper, Inhofe, Capito,
Boozman, Wicker, Fischer, Rounds, Ernst, Sullivan, Cardin,
Whitehouse, Merkley, Gillibrand, Booker, Markey, Duckworth, and
Harris.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Good morning. I call this hearing to
order.
Today we are going to be considering the nomination of four
individuals to serve as Assistant Administrators of the U.S.
Environmental Protection Agency and one individual to serve as
a member of the Nuclear Regulatory Commission, the NRC.
First, I am going to address the four nominees before us
today to be Assistant Administrators of the EPA. Each one is a
well qualified individual who will bring a wealth of experience
and expertise to a critically important role in protecting
America's public health and safety. I applaud the President's
nomination of such accomplished Americans and dedicated public
servants.
President Trump has nominated Michael Dourson to lead the
EPA's Office of Chemical Safety and Pollution Prevention. The
Office of Chemical Safety and Pollution Prevention protects the
American people and the environment from potential risks posed
by pesticides and toxic chemicals.
Dr. James Klaunig, who has served on numerous EPA
scientific advisory panels, stated of Dr. Dourson, ``Dr.
Dourson is a leader in the field of risk assessment. He has
been instrumental in bringing scientists of different
disciplines and representing different constituents together to
address current and future approaches to the risks of humans to
exogenous chemicals.''
President Trump also nominated Matthew Leopold to lead the
EPA's Office of the General Counsel. The Office of General
Counsel serves as the EPA's chief legal advisor. John Cruden,
former Obama Justice Department Assistant Attorney General,
said this of Mr. Leopold: ``He is committed to the rule of law
and can be counted on to give sound and candid advice to EPA
decisionmakers.''
President Trump nominated David Ross to lead EPA's Office
of Water. The Office of Water ensures drinking water is safe.
The Office also restores and maintains oceans, watersheds, and
their aquatic ecosystems to protect human health, to support
economic and recreational activities, and to provide healthy
habitat for fish, wildlife, and plants.
Todd Parfitt, the Director of Wyoming's Department of
Environmental Quality, said this of Mr. Ross. He said, ``Mr.
Ross possesses the necessary tools to effectively and
appropriately oversee EPA's water program in a fair, balanced,
and practical way.''
When we get to the witness introductions, I will be
introducing Mr. Ross and will say more about his
accomplishments in the time he spent in the State of Wyoming.
President Trump also nominated William Wehrum to lead the
EPA's Office of Air and Radiation. The Office of Air and
Radiation develops national programs, policies, and regulations
for controlling air pollution and radiation exposure. Former
environmental Obama Justice official John Cruden said of Mr.
Wehrum, ``I believe he is committed to achieving clean air for
all citizens and carefully following sound and current
science.''
I believe we must act quickly to confirm all these EPA
nominees so the Agency will be even better prepared to protect
human health and the environment, enforce our environmental
laws, and respond effectively when disasters strike.
It is deeply unfortunate that blind opposition to all of
these Administration EPA nominees, including the well respected
Susan Bodine to be EPA's Enforcement Chief, has stalled the
confirmation process. Susan was reported in July and has been
held up by the minority ever since.
I want to be clear. The EPA's Office of Enforcement and
Compliance Assurance, the office whose vital mission is to hold
polluters accountable, is without a confirmed leader. It is
without its confirmed leader because the minority feels
compelled to block all nominees to the EPA, regardless of all
the pollution and environmental needs of our communities,
including those communities struggling to recover from the
hurricanes that have ravaged our shores.
A primary complaint of the minority that they cite is that
blocking all nominees to the EPA is that the EPA is not being
responsive to minority's oversight requests. The EPA has
already sent the minority over 2,800 pages in response to its
seemingly never ending requests. And I have those responses
here. Twenty-eight hundred pages. And these are printed on both
sides of the pages throughout. Two thousand eight hundred pages
in response to its seemingly never ending requests of the
minority. These from the EPA. Claiming the EPA is not
responsive as an excuse for not confirming important nominees
does not pass the smell test.
Now, I regret that I can't strike the same positive note
that I have for the EPA nominees for the nomination of Jeffery
Baran to serve on another term as member of the Nuclear
Regulatory Commission. Mr. Baran is currently on the NRC and
though his term does not expire until June 2018, he has been
nominated at the request of the Senate Democrats. Senate
Democrats have refused to advance the nominations of Annie
Caputo and David Wright to the NRC until Commissioner Baran is
confirmed to a new 5-year term.
Let me be clear. Mr. Baran's nomination is a big ask. Mr.
Baran has been nominated for a term that is effectively 3 years
longer than the term for which Mr. Wright has been nominated
and 2 years longer than the term for which Ms. Caputo has been
nominated. If Mr. Baran is confirmed, his term would outlast
those of all Republican nominees to the NRC, including Chairman
Svinicki.
In December 2014, the last time the Senate confirmed Mr.
Baran, only one Republican voted in favor of his confirmation.
I, along with many Republicans on this Committee, have voted
against his nomination on six separate occasions. Since then
Commissioner Baran has given me little reason to reconsider my
vote. I hope this hearing gives us an opportunity to hear from
Commissioner Baran and get more clarity regarding his record at
the NRC.
I will now turn to the Ranking Member for his statement.
Thank you, Senator Carper.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thanks, Mr. Chairman.
I want to welcome our witnesses today, our nominees. I want
to welcome your family members--spouses, parents, children,
sisters-in-law, brothers-in-law. We are happy that you are
here, and we thank you for your willingness to share with our
country those that you love.
Let me just say our Chairman has stacked up here answers
that he explains are answers to requests and inquiries that we
have made on the minority side. Senate Democrats on this
Committee have sent Mr. Pruitt, the Administrator of the EPA,
some 26 letters. To seven of them we have received generally
full responses. Seven out of 26.
I have stacked up right here the pages of the responses for
the other 19 requests, the other 19 requests. I have said more
than a few times if the shoe were on the other foot, and we had
a Democrat in the White House, and we had a Democrat majority
in the House and the Senate, and the Republicans on this
Committee or any committee were trying to do oversight and get
the kind of responses from EPA and from an Administrator from
EPA, you would be pulling your hair out, and ours, too. This is
just unacceptable.
I am seen in the Senate, and before that as Governor of
Delaware, as a fair and impartial person. I like to work with
my Republican colleagues. I have gone to bat for my Republican
colleagues when we did have a Democrat in the White House and
the responses to them and to us were not what I thought they
should be.
But we can do better than that. EPA needs to do better than
that. They need to show us more progress, and when we do we
will be happy to move these nominations forward. I don't think
that is asking too much.
And with respect to the nomination of Jeff Baran to serve
another term on the Nuclear Regulatory Commission, if he is
confirmed, I hope that he will be, there will be--get this--
three Republicans on the Nuclear Regulatory Commission--three--
and there will be two Democrats. And they are all good
nominees, and I look forward to supporting them all.
Having said that, fast forward to the present to today's
hearing. We are 4 days into the new fiscal year and our EPA
Administrator, Scott Pruitt, has yet to appear before this
Committee to discuss EPA's proposed budget. Since Mr. Pruitt
was confirmed, I mentioned a number of letters that we
submitted and the responses that we have gotten, or not gotten.
Let me just say the idea that we are 9 months into a new
Administration, an Administration that has proposed deep cuts
in the budget for EPA, deep cuts to the number of people who
work there, deep cuts to the programmatic support of clean
water, clean air, cleanups for brownfields, hazardous waste
sites, and we have yet to see the EPA Administrator sit at this
table and talk to us to defend this budget. That is just
unheard of. I have never seen anything like this.
Turning to today's hearing, we have five nominees before
us. For the most part, I believe that Presidents, Governors,
mayors, and other elected CEOs should generally be allowed to
assemble their leadership teams. As Governor, I used to say to
the legislature, I have been elected to serve as Governor of
our State; allow me to at least nominate the people that I
think would enable me to serve well, and they did. And that is
why I find it hard, though, I have always tried to find a way
to support Democrat or Republic administrations with their
nominees, and I am certainly trying to do that in this
Administration, too. They don't always make it easy. They don't
always make it easy.
But I have some serious and unresolved concerns with two of
our nominees today. The majority of our nominees I expect to
support, but two I am troubled by, and I know a number of my
colleagues are as well.
Just over a year ago members of this Committee celebrated a
rare bipartisan achievement when Congress almost unanimously
enacted comprehensive reform of the Toxic Substances Control
Act. Jim Inhofe provided great leadership. Others on this
Committee did as well. From Jim Inhofe all the way to Ed
Markey, that covers a pretty broad spectrum here.
And we are trying to get that legislation implemented now,
and all of us want to see it implemented well. And it was
enacted because of a decades old lawsuit that made it all but
impossible for EPA to otherwise regulate some of the most
dangerous chemicals known to humankind. And we all share a
strong bipartisan interest in seeing the new law implemented in
an impartial, credible, and responsible way.
Regrettably, I am concerned that Dr. Dourson is not the
leader that we need for that job. Never in the history of the
EPA has a nominee to lead the Chemical Safety Office had such
deep ties to industry. Never has a nominee had such a long
record of recommending chemical safety standards that are as
much as thousands of times less protective, thousands of times
less protective than those recommended by regulators. Never has
a nominee, to my knowledge, so consistently underestimated the
risks of chemical exposures to the most vulnerable among us.
And I would like to recognize the presence of a number of
people who are here in this hearing today who have suffered
greatly due to exposure to harmful chemicals. These people
traveled all the way from across the country to be here today.
I am not going to ask them to stand, but we know you are here.
We appreciate your presence.
Having said that, Dr. Dourson did make a good faith effort
to respond to a number of the prehearing questions that I sent
him and others sent to him. That is the good news.
Now, Mr. Chairman, I ask unanimous consent to place those
materials in the record.
Senator Barrasso. Without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Unfortunately, though, the bad news is that
his answers did not alleviate my concerns about his nomination
and his suitability to serve.
I regret to say that my second concern with our nominees
today before us is the nomination of Bill Wehrum, whose mom is
here today, his wife is here today, sisters-in-law are here
today, and we welcome you. He asked me to introduce him, and I
have declined to do that, respectfully. I think my doing that
might hurt you more than help you, and I don't want to make the
situation more difficult for you or for me.
He is a Delawarean. This is a little State, and you know,
in Delaware you know just about everybody. We run many races
together. I usually have to see him run from behind. He is
always running far ahead of me; he is a great runner. Sometimes
we ride the same train together from Wilmington to Washington.
I think he is a good person. I think he is a good person, but
he is not, in my judgment, a good choice for this particular
job.
In 2005 Bill was nominated for the very same post, and I
opposed his nomination then due to concerns that he deferred
too frequently to industry rather than to protecting our
public, public health. Moreover, he has suppressed scientific
information and was not responsive to congressional requests.
Mr. Wehrum's nomination failed to receive Senate approval.
Though unconfirmed, he served for 2 years as the head of the
Air Office. Sadly, I fear that too little has changed since he
last appeared before this Committee.
I just want to take briefly--and then I will close, a look
at some numbers. One of the numbers is 31, 31, the number of
times that Mr. Wehrum has represented industry in lawsuits
against EPA since 2009. Against EPA.
Twenty-seven, the number of times that public health groups
prevailed in court when challenging clean air regulations that
Mr. Wehrum helped to craft at EPA because the rules didn't
follow the law or protect public health. Twenty-seven.
Ten, the number of additional years that children were
exposed to toxic power plant emissions due to regulatory delays
that Mr. Wehrum put in place while he was at EPA.
And one, the number of times that industry supported
language from Mr. Wehrum's old law firm and made it verbatim
into a clean air regulation that he helped to write at EPA.
As best we can tell, zero is also the number of times that
Mr. Wehrum advocated in court for stronger clean air
regulations since leaving the EPA, an especially troubling
number for those in downwind States like Delaware. Zero is also
the number of times that Mr. Wehrum expressed a desire to
protect public health when he and I met prior to this hearing
in my office.
My time is short. Thank you for being generous with it, Mr.
Chairman, but I would ask unanimous consent to submit my full
statement for the record, including my views on the other three
nominees before us who I hope to support.
I look forward to hearing from all of you. Again, welcome.
Thank you.
[The prepared statement of Senator Carper was not received
at time of print.]
Senator Barrasso. Thank you very much, Senator Carper.
Senator Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. I am delighted to
join Congressman Chabot and Dunn in making introductions of
nominees.
I will be introducing Bill Wehrum. I am his second choice
for an introduction. However, I am honored to do so. He has
been a friend during the years I chaired this Committee. I just
know his knowledge and expertise is second to none. His career
spans more than 31 years in the environmental field, including
work as an environmental engineer, a public servant with the
EPA, and an environmental lawyer. As a result, he is known
across the field as an expert on the issues he will be
overseeing at the EPA when he is confirmed.
He has consistently been recognized as a leader and top
lawyer in environmental laws for such groups as the Chambers
USA, Legal 500 United States, and Washingtonian Magazine. Those
who have worked with Bill praise him, like his former EPA boss,
Jeff Holmstead, who said, ``There is no better person to serve
as the Assistant Administrator of the EPA's Office of Air and
Radiation.''
Former EPA Deputy Administrator Marcus Peacock said, ``Bill
Wehrum, his understanding of the Clean Air Act may be second to
none. His desire to pull up his sleeves and actually make the
Clean Air Act work as a practical matter is second to none.''
And that gets to what we are doing here. Congress and our
other agencies should not be in the business of creating laws
and regulations that are unworkable and impossible to
implement, and I trust that Bill will be able to navigate the
line between the healthy environment and ensuring standards and
regulations are achievable and practical without undue harm to
our economy, and that is the law, I would remind you.
So, Mr. Wehrum, thank you for your willingness to do this
tough job, and I look forward to many more year of service with
you.
Senator Barrasso. Thank you, Senator Inhofe.
We have two members of the House who have joined us today,
Congressman Chabot from Ohio and Congressman Dunn from Florida,
to introduce two of the nominees.
I would like to welcome both of you to the Senate and
invite Congressman Chabot to introduce Dr. Dourson.
STATEMENT OF HON. STEVE J. CHABOT,
U.S. REPRESENTATIVE FROM THE STATE OF OHIO
Representative Chabot. Thank you very much, Chairman
Barrasso and Ranking Member Carper and all the members of this
Committee for inviting me here today to introduce a fellow
Cincinnatian, Dr. Michael Dourson.
As everyone on the Committee is aware, Dr. Dourson has been
nominated to be the Assistant Administrator for the EPA's
Office of Chemical Safety and Pollution Prevention.
I am sure that most of you are also aware that Dr.
Dourson's impressive credentials and distinguished career, so I
won't delve into every aspect of his resume, but I would like
to mention just a few highlights.
Currently, Dr. Dourson is a professor in the Risk Science
Center at the University of Cincinnati College of Medicine,
which is located in my congressional district in Cincinnati.
Prior to his current position he founded and led the Center's
predecessor for 21 years, the non-profit corporation Toxicology
Excellence for Risk Assessment. And these two positions
occurred following the 15 years Dr. Dourson worked at the U.S.
EPA, where he held numerous leadership positions.
Throughout his career, Dr. Dourson has served on numerous
government panels and authored or co-authored an impressive
array of publications, including more than 150 papers on risk
assessment methods or chemical specific analyses, and over 100
government risk assessment documents. And he has been elected
as a fellow or an officer for numerous professional
organizations, including the Academy of Toxicological Sciences,
the Society for Risk Analysis, the American Board of
Toxicology, and the Society of Toxicology. Currently, Dr.
Dourson is the President of the Toxicology Education
Foundation.
Dr. Dourson's excellence in his field of expertise has been
recognized time and time again. Over the years, he has received
four bronze medals from the EPA, the Arnold A. Lehman Award
from the Society of Toxicology, and the International
Achievement Award from the International Society of Regulatory
Toxicology and Pharmacology.
In addition to his stellar qualifications, I would be
remiss if I did not also mention that Dr. Dourson is a fellow
graduate of La Salle High School. And I would also be remiss if
I didn't mention that La Salle has won the Ohio Division II
State football championship the last 3 years, and we hope they
win it again this year.
Dr. Dourson, thank you for being here today, and
congratulations on your distinguished career and this
prestigious nomination. I wish you the best as this process
moves forward, and again I want to thank Chairman Barrasso and
Senator Carper and all the Committee members for allowing me to
be here today. And if I could be excused, I have the parents of
Otto Warmbier, who was kidnapped and brutalized by North Korea,
waiting for a meeting.
[The prepared statement of Representative Chabot follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Well, thank you for your time. Thank you
for your testimony. You are certainly excused.
Representative Dunn, welcome to the Committee, and we look
forward to your introduction.
STATEMENT OF HON. NEAL P. DUNN,
U.S. REPRESENTATIVE FROM THE STATE OF FLORIDA
Representative Dunn. Thank you very much, Chairman
Barrasso, Ranking Member Carper, and members of the Committee.
Thank you for the opportunity to introduce Matt Leopold,
President Trump's nominee to serve as the Assistant
Administrator to the Office of General Counsel of the United
States Environmental Protection Agency.
I have the honor of serving Matt in Congress as his
representative for Florida's 2nd Congressional District. Over
many years in public service to the State of Florida Matt has
earned a reputation for his commitment to the rule of law and
as a man of integrity.
Matt's record is well known to the members of this panel by
now. He served with distinction as the General Counsel for
Florida Department of Environmental Protection and is the
attorney for the U.S. Department of Justice's Environment and
Natural Resources Division. Along the way, he earned the high
regard of his colleagues and of the diverse group of
stakeholders served by those institutions.
Matt has twice been awarded the Attorney General's Award
for Excellence and was awarded a prestigious James Madison
Institute Leaders Fellowship during the 2015-16 years. I also
know him as a champion during his legal career on behalf of
Florida's coastal economies, particularly the oystermen and
small businesses of Apalachicola, who depend on the bay for
their livelihood.
Matt is an alumnus of the University of Florida and
obtained his JD from Florida State University College of Law,
so this is perhaps another indicator that he is uncommonly
capable of bridging diverse interests on complicated issues.
In closing, I thank you for the opportunity to introduce a
favorite son of Florida and a distinguished public servant to
the Committee today. I applaud the President's recognition of
Matt's unique qualifications for this critical role at the EPA,
and I look forward to his continued service on behalf of our
communities throughout our nation.
Thank you very much, Mr. Chair, for the opportunity.
[The prepared statement of Representative Dunn follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thanks very much, Congressman Dunn, and
you are excused as well. I know you have pressing items of
business elsewhere, so thank you for being with us today.
I would like to introduce David Ross, who is the nominee
for the Assistant Administrator of EPA's Office of Water. Mr.
Ross is a graduate of the University of Wisconsin-Madison and
the Vermont Law School. He currently serves as Assistant
Attorney General and Director of Environmental Protection Unit
for the Wisconsin Department of Justice. Before that, Mr. Ross
served as Wyoming's Senior Assistant Attorney General in the
Water and Natural Resources Division for the Wyoming Attorney
General's Office.
Mr. Ross has a total of two decades of environmental,
legal, and consulting experience in both the public and private
sectors. His nomination has elicited bipartisan praise and
support within my home State of Wyoming.
Dave Freudenthal, the former Democrat Governor of Wyoming,
has said ``Mr. Ross's private practice experience in DC,
combined with his service in two State environmental protection
agencies, make him uniquely qualified to implement America's
nuanced structure of Federal and State environmental
protection.''
Likewise, Wyoming's current Governor, Matt Mead,
Republican, expressed his unequivocal support for Mr. Ross,
saying, ``Dave is a talented attorney, an excellent advisor,
and a person who can get things done. I recommend Dave without
reservation for this position.''
So now I would like to welcome to the Committee our
nominees.
Please take your seats.
Congratulations to each of you. I welcome you to the
Committee. I would like to remind each of you that your full
written testimony will be made a part of the record. We look
forward to hearing your testimony today.
We will start first with Dr. Michael Dourson, and would you
like to introduce your brother?
STATEMENT OF MICHAEL DOURSON, PROFESSOR, RISK SCIENCE CENTER,
DEPARTMENT OF ENVIRONMENTAL HEALTH, UNIVERSITY OF CINCINNATI,
COLLEGE OF MEDICINE
Mr. Dourson. Yes. Chairman Barrasso, thank you very much.
My brother, David Dourson, is behind me, my younger
brother. He is a Cincinnati native and a businessman
extraordinaire. So, if you get a chance to talk with him, I am
sure he would be happy to speak with you.
Senator Barrasso. Thank you. Welcome to the Committee.
Welcome as a guest, and please proceed with your testimony.
Mr. Dourson. Well, thank you, Chairman Barrasso, Senator
Carper, and distinguished members of the Committee. I thank you
for the privilege of coming before you today as a nominee for
the position of Assistant Administrator of the Office of
Chemical Safety and Pollution Prevention. I am honored and
humbled that President Trump, Administrator Pruitt, and this
Committee are considering me for this position.
I would also like to thank my many current and former
colleagues with the University of Cincinnati College of
Medicine and the independent, non-profit Toxicology Excellence
for Risk Assessment, and the U.S. Environmental Protection
Agency for their support and friendship.
I also wish to thank my many friends and family, and
especially my much better half of 39 years, Martha Dourson, who
apologizes for not being here due to a family obligation
involving grandchildren.
I have worked on chemical safety and pollution prevention
issues for my entire professional career as a board certified
toxicologist in three different organizations and as an officer
in one or more groups with five different scientific societies.
The work included developing scientific positions to support
the rulemaking under congressional legislation, such as the
Clean Water Act, or pollution control prevention measures as in
my role as EPA's first leader of its Integrated Risk
Information System, or IRIS.
I have also served as a chair or member of well over 100
scientific peer review panels to review others' efforts. For
example, as chair of the panel that reviewed the nine
government response to the World Trade disaster, or as chair of
the panel that reviewed the government response to a West
Virginia river spill and recommended lowering the existing safe
dose by eightfold. We made it eightfold more safe.
If confirmed as the Assistant Administrator of the Office
of Chemical Safety and Pollution Prevention, I will dedicate my
mind, body, and spirit to the work of this office, to working
with its dedicated staff, to the protection of the American
public, including its most vulnerable, and its environment from
exposure to pesticides and otherwise unregulated chemicals, and
to answering any and all of your questions and those of your
constituents on chemical specific matters at any time.
In contrast, I will not deviate in my decisions from the
scientific principles of toxicology and risk assessment that
have been taught to me by my mentors and co-workers, nor
deviate from the code of ethics by my Society of Toxicology or
my Society for Risk Analysis, nor ever stop listening to my
colleagues whose expertise I do not have but otherwise cherish.
As you would expect, if confirmed, I will work with my
Office of Enforcement and Compliance Assurance colleagues in
the enforcement of environmental laws that you, the
representatives or our nation, have established. I strongly
support those laws and will do everything in my power to assure
that they are being administered fairly and without prejudice.
Finally, I will strongly foster, without reservation, a
collaborative spirit with our Federal and State colleagues, and
those from other nations, organizations, and the public on
pesticides and otherwise unregulated chemicals. It is through
such collaboration, exemplified throughout my career with EPA,
TERA, and U.C.--University of Cincinnati--it is through such
collaboration that EPA's practice of safety assessment and
pollution prevention will meet the needs of the 21st century
and will best protect the public health and the environment.
Your passing of the Lautenberg Chemical Safety Act was a
significant milestone, and I know it was celebrated here in
Washington, but it was widely celebrated outside of Washington,
DC, by many folks. So congratulations on that. It was enabled
by a bipartisan effort that included collection of diverse
outside groups. If confirmed, nothing less should be expected
of myself and the talented people of the Office of Chemical
Safety and Pollution Prevention who now carry your torch.
I appreciate the time and effort you have devoted to
reviewing my credentials and background materials, and look
forward to questions that you or your colleagues may have
regarding this or related information.
Thanks again for the opportunity to serve.
[The prepared statement of Mr. Dourson follows:]
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Senator Barrasso. Thank you very much, Mr. Dourson.
Mr. Leopold. And if you would like to introduce your
family, please go ahead, and then proceed with your testimony.
STATEMENT OF MATTHEW LEOPOLD, COUNSEL,
CARLTON FIELDS JORDAN BURT, P.A.
Mr. Leopold. Thank you, Mr. Chairman. With me I have today
my wife, Kim, my daughter, Ava, my son, Zane, and my son, Luke.
And at home with her grandparents is our 2-year-old daughter,
Abby. And not able to be with us here today is my father, Zane,
who couldn't make the trip from Florida.
Chairman Barrasso, Ranking Member Carper, distinguished
members of the Committee, I am thankful for the privilege of
being here before you today as the nominee for the position of
General Counsel of the Environmental Protection Agency. I am
honored that President Trump, Administrator Pruitt, and the
members of this Committee are considering me for this position.
The role of EPA's General Counsel, overseeing the
implementation of laws entrusted to the Agency, is a public
trust. If I am fortunate enough to be confirmed, I would pledge
to execute those duties with the utmost diligence and care.
The EPA is quickly approaching its 50th birthday, and over
those years it has already tackled some of the nation's most
pressing problems. When President Nixon and the Congress
created the Agency in 1970, there were environmental issues
that abounded--from the choking smog in Los Angeles, to toxic
dumping in our oceans, to an infamous burning river in Ohio.
The environmental laws passed by the Congress in the decades
that followed EPA's creation have been essential to securing
the promise of environmental and human health protections,
while at the same time allowing for economic growth and
prosperity.
There is no question that EPA has made great strides,
significantly improving the quality of the air we breathe and
the water we depend on. EPA must always continue to ensure that
we don't backslide from those important protections.
To accomplish this important mission, the Federal
environmental laws harness the strength not only of the Federal
Government, but the resources of the States in a unique
partnership known as cooperative federalism. Having served in
the Florida Department of Environmental Protection, as well as
the Environment and Natural Resources Division of the
Department of Justice, I saw firsthand how that cooperation
could yield incredible results on issues big and small.
For example, the Federal-State partnership to restore
America's Everglades is the largest ecosystem restoration
project in the world and has significantly improved water
quality and delivery in a vast and rare environment, benefiting
State, tribal, and Federal lands. On a smaller scale, I
observed the State issue permits, inspect facilities, and
collect air and water quality data which enabled EPA to better
understand, manage, and ultimately prevent pollution.
Leveraging the assets of State and Federal environmental
agencies continues to be a key strategy for protecting and
improving the environment.
On enforcement of our environmental laws, I have also seen
how the Federal Government and States came together to address
what has been called the greatest environmental disaster of our
time, the Deepwater Horizon oil spill of 2010. I am proud to
say that I played a small part in securing funding for
restoration by participating in the United States civil
enforcement case.
This massive effort, led by the Department of Justice,
resulted in a $20 billion settlement that has already begun
flowing to Federal, State, and local government entities around
the Gulf of Mexico. These funds are going largely to restore
and enhance the environment, creating a once in a generation
opportunity to address damages to natural resources and
conserve sensitive lands in the Gulf.
I have been engaged in environmental law and policy issues
for my entire legal career, and for most of those years I have
been in public service. Through that experience, I developed
great respect for my fellow career civil servants who carry out
the day to day work of the Federal agencies. And I think it is
important for political appointees in any administration to
listen to, understand, and collaborate with the career staff. I
plan to do nothing less, should I have the opportunity to lead
the Office of General Counsel.
Having been in private practice, I would also emphasize to
EPA employees the importance of listening to the regulated
community who understand, oftentimes better than government,
what it takes to comply with environmental regulation in the
real world.
In closing, Mr. Chairman, I again thank the President and
this Committee for the opportunity to be here today. I would be
humbled to join Administrator Pruitt to carry out EPA's
important mission. I respectfully request your support, and I
look forward to any questions you or your colleagues may have.
[The prepared statement of Mr. Leopold follows:]
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Senator Barrasso. Thank you very much, Mr. Leopold, and
congratulations.
Mr. Ross.
STATEMENT OF DAVID ROSS, ASSISTANT ATTORNEY GENERAL, STATE OF
WISCONSIN, AND DIRECTOR, WISCONSIN DEPARTMENT OF JUSTICE
ENVIRONMENTAL PROTECTION UNIT
Mr. Ross. Chairman, I would like to first introduce my
family. With me are my wife, Tiffany, and my girls, Payton and
Kennedy, who are sitting behind me. The girls are here on
special assignment from their social study classes back in
Waunakee, Wisconsin.
[Laughter.]
Mr. Ross. My brother, Admiral Eric Ross, is also here. Eric
is taking time out of his busy schedule to attend today. Eric
had the honor of being confirmed by the U.S. Senate as a Rear
Admiral in the U.S. Navy earlier this year, and I thank the
Senate for that family honor.
My mother, Sue, and my sister, Debbie, are back home,
hopefully participating, watching right now.
Chairman Barrasso, Senator Carper, and distinguished
members of this Committee, I am honored to be here today, and I
want to thank President Trump and Administrator Pruitt for
placing their trust in me and for providing me with this
amazing opportunity to serve the public as the Assistant
Administrator for EPA's Office of Water.
I also want to thank my wife, Tiffany, my amazing girls,
Payton and Kennedy, and the rest of my family for their support
as I continue my career in public service.
And Chairman Barrasso, I want to thank you for the
introduction and for your support during my time working for
the great State of Wyoming.
I have worked on water quality and resource management
issues my entire career. My experience ranges from serving as a
consultant on wastewater reclamation and reuse projects, to
advising members of the regulated community on Clean Water Act
compliance and related matters, to serving as the lead water
quality attorney for the State of Wyoming and currently as the
lead environmental prosecutor for the State of Wisconsin. I,
therefore, understand water resource issues from multiple
perspectives, and I have a deep appreciation for the complexity
inherent in managing those waters.
Our waterways help transform the nation into an economic
power, and they continue to support economic activity that
sustains our position in the world. They move commerce, supply
power, provide drinking water, sustain wildlife, grow crops,
and serve as playgrounds for outdoor enthusiasts. These
competing uses highlight the critical importance of our
nation's water resources, but they result in divergent views on
how best to manage those resources.
The Office of Water must consider those diverse
perspectives while pursuing common objectives, including
protecting and enhancing the quality of our water, ensuring
that our citizens have access to safe and reliable drinking
water, and promoting regulatory certainty.
I will pursue those objectives based on a few core
principles. First, we must manage our nation's waters within
the statutory framework established by Congress, while
respecting the constitutional limitations imposed by our
founding fathers. If I have a bias as a lawyer, it is a
profound respect for the rule of law.
Second, I will respect the role of States, tribes, and
local governments as key partners in managing our nation's
water resources. I have been fortunate to observe firsthand the
expertise and professionalism of State environmental officials
and their dedication to the protection of the resources that
they know best. I have also witnessed the frustration those
environmental experts experience when the Federal Government
fails to engage with them on matters of critical importance to
the States. Should I be confirmed, I will embrace cooperative
federalism as envisioned by Congress when it enacted many of
the statutes that govern the work of EPA.
Third, and finally, I will manage with an open mind, I will
seek the input and expertise of the dedicated career
professionals at EPA, I will listen to the advice and
recommendations of the regulated community and the rest of the
American public, I will engage with the States, tribes, and
local governments, and I will pursue the objectives of my
management with dedication, while always striving to give them
my best counsel.
The nation has made great progress improving the quality of
our waters over the past 50 years. There is certainly more work
to do, but I am confident that we can continue to make progress
while pursuing the twin goals of environmental protection and
economic prosperity for the nation. Indeed, to be successful, I
think those goals are--and must be--interdependent.
Thank you for your time today and the opportunity to
appear. I look forward to answering any questions that you may
have, and more importantly, to working collaboratively with all
members of this Committee and your colleagues in both chambers,
should I have the honor of being confirmed.
[The prepared statement of Mr. Ross follows:]
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Senator Barrasso. Well, thank you very much, Mr. Ross, and
congratulations.
Mr. Wehrum, welcome to the Committee. We look forward to
your testimony.
STATEMENT OF WILLIAM WEHRUM,
PARTNER, HUNTON & WILLIAMS LLP
Mr. Wehrum. Thank you, Mr. Chairman.
I would first like to introduce my family who are here with
me today. My wife, Cindy, is sitting immediately behind me; my
mother, Mary Ann, and my sisters, Lisa and Laura, who, believe
it or not, are twins, fraternal, of course.
Senator Carper, my wife came down on 111 this morning and
will be on 188 tonight, so if you happen to be on the train,
please be sure to say hello to her.
Chairman Barrasso, Ranking Member Carper, and members of
the Committee, thank you for the opportunity to appear before
you today as the nominee for the position of Assistant
Administrator for the Office of Air and Radiation at U.S. EPA.
I am honored that President Trump nominated me for this
position.
I would also like to thank, in particular, Senator Inhofe,
for your very kind introduction. Under your leadership,
previously in 2005, my nomination was voted out of this
Committee, and I very much appreciate that. That meant a whole
lot to me.
President Trump and Administrator Pruitt have set a clear
agenda that I intend to implement if confirmed to this
position. The President has issued executive orders that will
eliminate needless and burdensome regulations, simplify and
streamline compliance obligations, and strike a better balance
between the twin goals of protecting human health and the
environment and promoting the economic vitality of the nation.
Administrator Pruitt emphasized three key objectives in his
remarks to this Committee during his confirmation hearing.
First, we are a nation of laws. He explained that EPA's role is
to administer those laws faithfully and that the Agency should
avoid the temptation to bootstrap its own powers and tools
through rulemaking.
Second, Administrator Pruitt committed that the Agency
would acknowledge, respect, and promote the critical role of
States in implementing Federal environmental laws and in
protecting human health and the environment. Cooperative
federalism is one of the cornerstones of the Clean Air Act. In
fact, in the very first section of the Act, Congress declares
that air pollution control at its source is the primary
responsibility of States and local governments. Administrator
Pruitt's commitment to State involvement carries out Congress's
stated intent.
Third, Administrator Pruitt emphasized the important role
that the public plays in the regulatory process. He said, ``It
is critical to me that EPA also truly listen to the diverse
views of the American people and learn from them.'' He rightly
stated that ``we simultaneously pursue the mutual goals of
environmental protection and economic growth,'' but cautioned
that that can only happen if EPA listens, listens to the views
of all interested stakeholders.
These are goals and objectives that have been established
by our leadership. I concur in them, and if confirmed, will do
all I can to achieve them.
Mr. Chairman and members of the Committee, thank you again
for the opportunity to be here, and I would be happy to answer
any questions you may have today.
[The prepared statement of Mr. Wehrum follows:]
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Senator Barrasso. Well, thank you very much and
congratulations, Mr. Wehrum.
Mr. Baran, welcome to the Committee.
STATEMENT OF JEFFERY BARAN, (REAPPOINTMENT) COMMISSIONER, U.S.
NUCLEAR REGULATORY COMMISSION
Mr. Baran. Thank you.
Chairman Barrasso, Ranking Member Carper, and members of
the Committee, thank you for the opportunity to appear before
you today. I am honored to have been nominated to continue my
service on the Nuclear Regulatory Commission for another term.
I want to thank my wife, Michelle, and our kids, Mia, Gus,
and Max for their love and support. My dad, Marty, also
deserves special recognition for the many, many hours of
Commission meetings he has watched online. He probably set some
kind of record there.
When I was confirmed as a Commissioner almost 3 years ago,
I committed to bringing an open minded and collegial approach
to the issues that come before the Commission, and I have
worked very hard to meet that commitment. My focus has been on
crafting thoughtful, balanced, and timely votes after hearing
from a broad range of stakeholders. I value the relationships I
have formed with my Commission colleagues, the NRC staff,
licensees, unions, States, and public interest organizations,
and have benefited greatly from their ideas and input.
My frequent visits to nuclear plants and other NRC
regulated facilities not only give me an opportunity to view
equipment and technologies firsthand; they also give me the
chance to hear directly from NRC's resident inspectors, as well
as the workers and managers at the sites about their priorities
and concerns.
If confirmed, I look forward to continuing to serve with
Chairman Svinicki and Commissioner Burns. We work very well
together. We don't always agree on policy, but we always have
constructive and collegial discussions, and I think that is how
the Commission is supposed to work, bringing together people
with different backgrounds, perspectives, and experiences, and
have them grapple with tough policy issues together.
Ultimately, we make sure that important regulatory decisions
are carefully and thoroughly considered.
If they are confirmed, I also look forward to working
closely with my fellow nominees, Annie Caputo and David Wright.
Several important initiatives are underway at NRC, and I am
eager to see them through to their conclusion. If I am
confirmed for another term, I will continue to focus on these
efforts, including the power reactor decommissioning
rulemaking, implementation of post-Fukushima safety
enhancements, development of an effective and an efficient
licensing framework for advanced reactors, and the pending
small modular reactor design review.
Managing the Project Aim reductions while fulfilling NRC's
vital mission of protecting public health and safety and the
environment is one of the Agency's most significant challenges
in the coming years, so ensuring that the Agency has the
resources, talent, and leadership to succeed is another top
priority for me. I am happy to discuss these or any other
issues of interest to members of the Committee in greater
detail today or in the future.
Prior to my service on the Commission, I had the privilege
of working for Congress for more than a decade. I have a deep
respect for the importance and value of congressional
oversight. If confirmed, I will continue to do everything I can
to ensure that the Committee has the information it needs to
meet its oversight responsibilities.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Baran follows:]
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Senator Barrasso. Well, thank you all for your testimony.
Throughout the hearing and with questions for the record,
the Committee members are going to have an opportunity to learn
more about your commitment to public service and this nation. I
would ask that throughout the hearing please respond to the
questions, as well as those written questions that will be
submitted after the hearing. Please submit those for the
record.
I have to ask the following questions that we ask all
nominees. I do this on behalf of the entire Committee.
Do you agree, if confirmed, to appear before this Committee
or designated members of the Committee and other appropriate
committees of the Congress and provide information subject to
appropriate and necessary security protection with respect to
your responsibilities?
Mr. Dourson. Yes, I will.
Mr. Leopold. Yes, I will.
Mr. Ross. Yes, I will.
Mr. Wehrum. Yes, Mr. Chairman.
Mr. Baran. Yes.
Senator Barrasso. Do you agree to ensure that testimony,
briefings, documents, and electronic and other forms of
information are provided to this Committee and its staff and
other appropriate committees in a timely manner?
Mr. Dourson. Yes, Senator.
Mr. Leopold. Yes, Mr. Chairman.
Mr. Ross. Yes, I will.
Mr. Wehrum. Yes, Mr. Chairman.
Mr. Baran. Yes.
Senator Barrasso. 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?
Mr. Dourson. No, Mr. Chairman.
Mr. Leopold. No, Mr. Chairman.
Mr. Ross. No, I do not, Mr. Chairman.
Mr. Wehrum. No, Mr. Chairman.
Mr. Baran. No, I do not.
Senator Barrasso. Based on a prior agreement with the
Ranking Member, we will have two rounds of questions, not the
customary one round. Each Senator will have 5 minutes of
questions per round. I will begin with my questions.
Commissioner Baran, as you know, in 2013 the U.S. Court of
Appeals for the D.C. Circuit ordered the NRC to resume the
licensing process for Yucca Mountain. The Court found that the
NRC, under former Chairman Jaczko, had illegally terminated the
licensing process. Under that Chairman, the NRC argued that it
suspended the licensing process because it said Congress had
not appropriated the funds necessary to complete it. The NRC
also speculated that Congress would not appropriate additional
funds in the future.
In the order, the Court rejected the NRC's rationale. It
explained, ``Federal agencies may not ignore statutory mandates
simply because Congress has not yet appropriated all of the
money necessary to complete a project.'' The Court also stated,
``An agency may not rely on political guesswork about future
congressional appropriations as a basis for violating existing
legal mandates.''
Well, last month the NRC, under Chairman Svinicki, voted to
spend funds on activities related to the licensing process of
Yucca Mountain. The NRC took this step to comply with the
Court's order. The NRC took this step on a bipartisan basis,
and you were the lone person to dissent. You wrote that you did
not believe, you said, that the NRC should take such a step
without knowing whether Congress will decide to appropriate
funds for the licensing proceeding. You suggested that Congress
might not appropriate the funds. You stated, ``It has been 6
years since Congress last appropriated moneys for the Nuclear
Waste Fund.''
Commissioner, I just find your rationale deeply troubling.
The Court has ordered the NRC to resume the licensing process.
Why are you following the footsteps of former Chairman Jaczko
and using a discredited rational--uncertainty about
appropriations--as an excuse not to follow the law in the
courts?
Mr. Baran. Well, thank you for the opportunity to clarify
my vote. Back when the D.C. Circuit looked at this issue, I
believe there were about $13 million of appropriated funds
remaining, and at that time the D.C. Circuit said there is more
you can do with those funds, NRC; you should go ahead and do
that; and in the intervening years that is exactly what NRC has
done. In that time, the NRC staff completed the safety
evaluation report, prepared a supplemental environmental impact
statement that addressed groundwater issues, worked on making
sure documents were available online that were previously held
in the system for the adjudication.
In that time, the amount of appropriated funds we have left
that were previously appropriated has dropped to, I think,
around $600,000 or $700,000. We are also in the midst of some
litigation that requires the use of some of those funds.
So the question that was presented to the Commission is
does it make sense, in fiscal year 2017, to use most of those
remaining funds to start doing some preliminary steps toward a
potential adjudication. My view is that it did not make sense
to expend the very little that we had left of those Nuclear
Waste Fund moneys during the fiscal year to prepare for an
adjudication until we knew whether Congress was going to
appropriate funds for the adjudication in fiscal year 2018.
And I kind of share the view that you expressed, which is
that we shouldn't, as a Commission, be making predictions about
what Congress is going to do. My view is we should wait a few
months, see what Congress decides to do. Some of the items that
would have been funded, for example, like a real estate search
for a facility to hold the hearing in Nevada, are very kind of
short shelf life type items, so I didn't think it made sense to
start doing that work until we knew we were actually going to
begin the adjudication in fiscal year 2018.
Senator Barrasso. With all due respect, it just seems that
agencies do rely on guesswork about appropriations in an effort
to comply with the law. What the Court said is that agencies
may not rely on guesswork about appropriations to avoid
complying with the law. So I just find it disturbing that
perhaps your opposition to Yucca Mountain is so strong that you
wouldn't even follow the legal court order on this one.
Mr. Wehrum, last week you argued a case before the U.S.
Court of Appeals for the D.C. Circuit. You did it on behalf of
clients who were challenging the Silica Rule. Do you have any
concerns that this litigation is going to interfere with your
work, if confirmed as the EPA Assistant Administrator for the
Office of Air and Radiation?
Mr. Wehrum. No, Mr. Chairman, no concerns whatsoever. The
issues related to the Silica Rule we were litigating have
absolutely nothing to do with the issues for which I would be
responsible, if confirmed to the position of AA for OAR at EPA.
Furthermore, as we all know, there are comprehensive ethics
rules that will govern my transition from private practice into
Government service. I already am working very closely with
EPA's ethics officers to make sure I fully understand those
obligations and have their counsel, and I commit that I will
strictly follow the regulations that apply to this transition,
Mr. Chairman.
Senator Barrasso. Thank you very much.
Senator Carper.
Senator Carper. Thanks, Mr. Chairman.
Again, our thanks to all of you for joining us today and
for your statements.
I want to go back to something that Mr. Leopold said, and I
thought he really nailed it, and I thought he spoke from his
heart with respect to his commitment to protecting our air and
our water and our natural resources in this role, if he is
confirmed. Here is what he said. He said the environmental laws
passed by Congress in the decades that followed EPA's creation
have been essential to securing the promise of environmental
and human health protections while at the same time allowing
for economic growth and prosperity. He went on to say there is
no question that EPA has made great strides, significantly
improving the quality of the air we breathe and the waters we
depend on. EPA must always continue to make sure that we don't
backslide from these important protections.
When our four nominees for EPA appeared before, I was
looking for that kind of commitment to protecting our air, our
water, our natural resources, and I must say I was disappointed
not to hear it today from at least two of our witnesses, and
sadly, not to hear it in the meetings that we had in my office.
I repeated those words because that is the kind of
commitment we are looking for. That is what we are looking for.
I have a poster I just want to hold up, if I can, and
probably ask my first question, if I may, of Dr. Dourson.
As I mentioned in my opening statement, Dr. Dourson, one of
the main reasons that Congress worked so hard to reauthorize
the Toxic Substances Control Act was because everyone
recognized that EPA needed to have the authority to credibly
and impartially assess chemical safety and regulate the
chemicals that were found to be dangerous.
This poster shows some examples of the chemicals that you
were funded by industry to study. In each and every case you
concluded that the right safety standard for the chemicals
should be tens, hundreds, even thousands of times less
protective, less protective than the Federal or State
regulators did. It is regrettably difficult to look at your
record and conclude that you could be an impartial regulator.
One way you could remedy the perception that you may not be
able to be an impartial regulator would be to promise to recuse
yourself, if you are confirmed, from working on any chemical
that industry has paid you, has paid you to study. And I am not
interested in a long answer, but I would like a very brief
answer. Yes or no will do. Would you make that commitment
today?
Mr. Dourson. Senator, I can give you as many or more
examples of situations where the science that we brought
forward as a team actually lowered the safe dose or risk
position for various sponsors. If confirmed, I will rely on the
guidance of EPA ethics officials to determine any issues for
which I am to be recused.
Senator Carper. Let me just say all of us here try to
figure out the right thing to do and do it: not the easy thing,
not the expedient thing. When I apply the ``right thing to do''
test to this, the idea that I represented industry combating
EPA on a particular substance, and later on I am going to have
the opportunity, as part of the EPA leadership team, to
determine whether or not, presumably impartially, we are going
to allow that substance to be approved or in our environment, I
would recuse myself. I would just say I am going to recuse
myself. It wouldn't be right for me to represent industry
opposing EPA with respect to that particular substance and then
turn around and go to work for EPA and take the other position.
I just don't see why you can't just say I would recuse myself.
I don't get it.
Mr. Dourson. Well, Senator, again, the majority of our work
is done for government organizations, and several of the
chemicals up there we were doing, we did work with teams of
individuals and groups, including government and industry
organizations. So, again, I will rely on the guidance of U.S.
EPA ethics officials to determine any issue for which I am to
be recused.
Senator Carper. Mr. Chairman, I want to just ask unanimous
consent to submit for the record a list of over 150
organizations from across our country who are opposed to Dr.
Dourson's nomination. This list consists of environmental
groups, labor groups, health, justice and consumer groups, and
the American Association of Justice. I submit this list for the
intention that it will allow the record to better reflect the
considerable national opposition to his nomination.
Senator Barrasso. Without objection.
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Senator Carper. I also want to ask unanimous consent to
back up the re-nomination of Mr. Baran to submit for the record
a release, I guess it was just yesterday, October 3rd, a
release from the Nuclear Energy Institute, the nuclear
industry's association. This press release echoes my support
for Mr. Baran and his re-nomination to serve as Commissioner to
the Nuclear Regulatory Commission. I ask unanimous consent.
Senator Barrasso. Without objection.
Senator Carper. Thank you.
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Senator Carper. Thanks very much.
Senator Barrasso. Thank you, Senator Carper.
For the record, on September 15th of this year, 14 doctors,
each of whom has won the Arnold Lehman Award, the Society of
Toxicology's highest honor, submitted a letter of support for
Dr. Dourson's nomination. They wrote, ``Dr. Dourson is highly
qualified to serve as an Assistant Administrator of the Office
of Chemical Safety and Pollution Prevention.'' They go on to
say, ``Dr. Dourson's deep understanding of the scientific
elements of toxicity testing, data interpretation, weight of
evidence evaluation procedures, and risk assessment is just
what it will take to ensure effective implementation of the
TSCA reform legislation.''
I ask unanimous consent to enter this letter into the
record.
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Senator Barrasso. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
Mr. Baran, a recent report from the Energy Futures
Initiative, a group formed by former Secretary of Energy Ernest
Moniz, and a lot of other people, too, were involved in this,
concluded that a healthy U.S. civilian nuclear power industry
is a national security imperative--not opportunity, imperative.
The report found, ``The nuclear sector helps the U.S. military
meet specific defense priorities, supports implementation of
U.S. nonproliferation policy, and is essential to the global
protection of U.S. military capability. The flip side is that
an eroding nuclear enterprise will compromise nuclear
securities capabilities and make them more costly.''
Do you agree that the erosion of the U.S. commercial
nuclear power industry presents a threat to the United States'
national security?
Mr. Baran. As an NRC Commissioner, Senator, it is my job to
focus on nuclear safety and security, not to weigh in on----
Senator Inhofe. No, I think it is an easy answer. Do you
believe that that is related to our national security?
Mr. Baran. Well, again, as a Commissioner, it is not my job
to weigh in on the pros and cons of the merits of nuclear
power.
Senator Inhofe. All right, let me reword something, then.
As the former report said, the U.S. ability to influence
nonproliferation was ``rooted in the historically unique
capabilities in U.S. technology, services, and know-how.''
At this time, at this time, Mr. Baran, there is one new
nuclear plant under active constructive and at least 16
existing nuclear plants under the threat of closure. Meanwhile,
the rest of the world is advancing. We are falling behind. Does
this bother you?
Mr. Baran. Well, again, it is our job at NRC, we stay
focused on our mission, which is to ensure the safe, secure use
of nuclear power to protect human health and the environment.
That is our focus. It is our responsibility to make sure that
we have----
Senator Inhofe. You don't have an opinion on this as to
whether or not this affects our national security? You have a
problem with the fact that the rest of the world is passing us
up in nuclear progress?
Mr. Baran. Well, the part I focus on, and my job as a
Commissioner, is to make sure we have an effective, efficient
process for licensing new reactors, and that we do a good job
overseeing the construction that is underway.
Senator Inhofe. All right. Thank you very much.
Mr. Wehrum, in 2015 the Supreme Court found that the EPA,
under the Obama administration, violated the Clean Air Act by
not looking at the cost of compliance. This is required,
looking at the cost of compliance before issuing new
regulations on the emission of mercury and other toxins from
coal fired power plants, as Congress required. That is in the
law. In fact, the Clean Air Act calls for EPA to conduct
ongoing evaluations of job losses, economic shifts in costs,
and so forth.
Do you believe that EPA should follow that law?
Mr. Wehrum. Senator Inhofe, absolutely.
Senator Inhofe. You have demonstrated that in the past,
haven't you?
Mr. Wehrum. I have tried very hard to achieve the dual
goals of the Clean Air Act, Senator, which is to protect human
health and the environment, but also promote the economic
vitality of this nation.
Senator Inhofe. And if you are confirmed to this position,
you will do so and continue to do it?
Mr. Wehrum. Yes, Senator, I will.
Senator Inhofe. Mr. Wehrum, you previously served for 6
years on the EPA. You did great work, and I thank you for that
service. Can you talk about a project that you worked on which
you are most proud? You and I talked about this in the past. I
think we should share it on the record here. How did that
project protect the public health and our environment?
Mr. Wehrum. Well, Senator, one of the key achievements
during my time at EPA was implementation of the so-called Tier
4 Nonroad Rule, which is a comprehensive set of emissions
limits and fuel requirements for engines in vehicles that are
used off the highway. That program was unprecedented at the
time, achieved millions of tons of emissions reductions, and
did it in a very smart way, such that was also achieved even
greater amounts of benefits to health and the environment.
Senator Inhofe [presiding]. It has been very effective.
Senator Whitehouse.
Senator Whitehouse. Thank you very much, Chairman.
Mr. Dourson, the tobacco industry has manipulated and
obfuscated scientific research into the dangers of smoking for
decades. Your name comes up over 460 times in the tobacco
industry documents made public as part of the tobacco master
settlement agreement. Some of your e-mails are there,
corresponding with Philip Morris over the work they hired you
to do. Even the articles of incorporation for your
organization, TERA, are there in the files of R.J. Reynolds,
with a handwritten note next to your bio that the document
should be filed under Consultants: Dourson.
In the late 1990s TERA, the organization you founded,
received funding from the Center for Indoor Air Research to
study the effects of secondhand smoke. TERA's name pops up
throughout the tobacco data base, and it has been well
documented that the Center for Indoor Air Research was a front
group for the tobacco industry.
In 1999 you were the co-author of a paper that
underestimated the effects of exposure to secondhand smoke in
the workplace. To reach this industry favored conclusion, you
and the other authors relied on inappropriately combined
exposure data collected from workplaces that allowed smoking
anywhere and those that allowed it only in designated areas,
which skewed the results. That study is also in the tobacco
data base, compliments of the Philip Morris collection.
Can you and will you provide a full accounting of all the
work you and TERA did for the tobacco industry, all the money
you and TERA received from the tobacco industry, and the role
that you played in the campaign to hide the truth about the
dangers of smoking?
Mr. Dourson. Senator, the roles that we played in the
tobacco work are a matter of public record in the House Science
Space and Technology 2015 hearing. The total value of our
tobacco work was approximately $13,000.
The bottom line is that throughout my career, with EPA,
TERA, and now with the University of Cincinnati, I have been
objective in my work and applied sound science to come to my
conclusions.
Senator Whitehouse. And Mr. Wehrum, you have been leading
the fight against EPA's air standards, so it is unclear to me
how you are appropriate to serve in the position to enforce
those standards. In particular, Executive Order 13770, Ethics
Commitments by Executive Branch Appointees, prohibits
appointees from participating in any particular matter
involving specific parties that is directly and substantially
related to their former employer or former clients for the
first 2 years after their appointment. Your ethics agreement
states that you intend to sign the pledge.
We are aware of dozens of separate air cases you have
worked on during your time at Hunton & Williams. To ensure
compliance with the pledge, will you provide for the record all
of Hunton & Williams' clients and cases or work from the past 2
years, noting all clients with whom you have worked, cases on
which you have worked, and regulatory work you have done?
Mr. Wehrum. Senator, as I stated previously, there are
comprehensive rules of ethics that govern transition of someone
like myself from private practice into Government service. I
already have had extensive conversations with EPA ethics
officials, and will continue to consult with them closely if
this transition goes forward, if confirmed.
Senator Whitehouse. Do you understand that the Senate has
an independent role and has a right to independent
investigation and independent information, that we aren't just
an adjunct of the EPA ethics department?
Mr. Wehrum. I am sorry, Senator, I missed the beginning of
your question. I apologize.
Senator Whitehouse. Do you understand that the Senate has
its own independent oversight responsibility here and that we
are not an adjunct to the EPA ethics office?
Mr. Wehrum. I understand, Senator, yes.
Senator Whitehouse. And will you provide the materials to
us so we can engage in that oversight?
Mr. Wehrum. Senator, as I said, my commitment is to
understand the comprehensive rules of ethics that apply, to get
the best advice that I can in understanding what I am required
to do and to comply with them and to make every effort to
strictly comply.
Senator Whitehouse. Well, that sounds like a no with
regards to the Senate.
Did you or your firm do any pro bono work? Pro bono work
need not be disclosed. Did you do any pro bono work for the
Oklahoma Attorney General's Office while Scott Pruitt was the
attorney general?
Mr. Wehrum. I personally have done no work for the State of
Oklahoma, and I can't speak for the rest of my partners and
associates; I have never made that inquiry, Senator.
Senator Whitehouse. You don't know whether the firm did or
did not?
Mr. Wehrum. I do not know, Senator.
Senator Whitehouse. Would you provide the Committee a list
of the firm's pro bono work so that we can make an assessment
of whether or not pro bono clients ought to be covered by the
ethics pledge? At the moment, we simply would never know.
Mr. Wehrum. Well, as I said, Senator, there are
comprehensive rules that apply, very strict, including the
voluntary agreement that you referred to, which I have
committed to sign and----
Senator Whitehouse. And which pro bono work does not apply
to, right?
Mr. Wehrum. I am sorry, Senator, I don't understand your
question.
Senator Whitehouse. The ethics pledge does not require you
to disclose pro bono work, does it?
Mr. Wehrum. I don't know the answer to that, Senator. I
believe it applies to any work. There is no difference between
pro bono work and work that is done for pay. We owe all clients
a common commitment of zealous representation.
Senator Whitehouse. Well, my time has gone by. I hope that
these questions and the independent role of this Committee to
do oversight is not something that is going to be overrun in
the pursuit of getting these nominees in place.
Senator Inhofe. Thank you.
Senator Capito.
Senator Capito. Thank you, Mr. Chairman.
Thank all of you for being here today.
Dr. Dourson, you have a long career in industrial chemical
risk assessments, including with your consulting firm. As you
know, TERA, we talked about this when you came to my office,
you have been involved with two cases that very much touched
the lives of my fellow West Virginians, one being the DuPont C8
and Teflon manufacturing issues and the other being the Freedom
Industry spills of 2014, a spill of MCHM and PPH.
The accuracy of these safety standards, having lived
through these spills personally, myself, the accuracy of safety
standards is absolutely critical. It is imperative to have it
as quickly as possible and as accurately as possible to protect
constituents and to also can have significant implications for
liabilities.
This issue is particularly sensitive, as I mentioned
earlier, so I believe that we must conduct rigorous enforcement
of appropriate safety standards, that we must hold those
illegally exposing human health and the environment to harmful
substances accountable, and that we must support timely and
effective mitigation and cleanup efforts when spills do occur,
and we need to apply the lessons of past incidents to prevent a
recurrence of harmful spills and emissions.
Do you share those goals, Dr. Dourson?
Mr. Dourson. Yes, Senator, I share those goals.
Senator Capito. If you are confirmed, how would you direct
the Office of Chemical Safety and Pollution Prevention to
achieve these goals?
Mr. Dourson. Well, several of these goals reside in the
authorities of other EPA offices, but if confirmed with the
Office of Chemical Safety and Pollution Prevention, I will work
with other EPA offices, as appropriate, to fulfill these goals.
Senator Capito. In the past, in your past work, I would
imagine, in order to get the appropriate process for setting
scientifically sound safety levels, that you need to advocate
for a transparent peer reviewed body of science to back reviews
of safe levels of potentially harmful substances. Would you
agree with that, and what have you done in the past that would
convince me that this is the direction you would take the
office?
Mr. Dourson. Well, absolutely I agree with this. TERA, the
capacity of TERA as the non-profit 501(c)(3) organization, and
then University of Cincinnati, we have had over 100 independent
peer review panels. We have different groups come to the
panels, different sector representation. We have well
established conflict of interest statements, and also we have
been reviewed by the EPA's Inspector General in 2009 as a way
of showcasing our particular independent peer review panel. So
I very much agree with your views of independent peer review
and transparency as paramount.
Senator Capito. Thank you, Dr. Dourson.
Mr. Ross, you and I talked about intractable water systems.
I am still on water because we have had some issues. We have a
lot of kind of abandoned former coal camps where the systems
are just defunct, but they don't have the money, or there isn't
the money there to maintain or to get them back into
compliance. A lot of these communities, unfortunately, are
under boil water orders, and in many cases the EPA continues to
issue citations, including fines, but there is no real help
here for them in an official management capacity to get them
into compliance, and it is my understanding that we really
haven't studied this issue as deeply as we should.
I am working on a legislative solution to help deal with
this problem and hope that the EPA will be a willing partner.
So, I am asking you are you willing to work with me and others
to study the challenge posed by intractable water systems?
Mr. Ross. Yes, Senator, very much so. You have put your
finger on a very critical priority for me, should I be
confirmed, addressing these challenges going forward. It is an
issue that we addressed in Wyoming, we struggle with, and we
deal with in Wisconsin, and I look forward to working on that
at a national level.
Senator Capito. Last, Mr. Ross, I would like to give you
the opportunity to respond a little bit to what Senator Carper
had mentioned. At least the implication that I heard was that
because it wasn't expressly in your statements, several of your
statements, that you are less committed to the end goal of
clean water and environmental safety standards of the highest
order, and I would like to know if you have a response to that.
Mr. Ross. Thank you, Senator, for that opportunity. I do.
In fact, I wish Senator Carper was here because he gave me a
research assignment when I met with him, and to go to him, and
the opening lines were for the beauty of this earth and for the
beauty of the skies. And he put his finger on why I do what I
do for a living. Now, I may disagree a little bit on some
approaches, but the ultimate objective I share deeply. So I am
fully committed to protecting public health and the
environment, should I be confirmed.
Senator Capito. Thank you.
Thank you, Mr. Chair.
Senator Inhofe. Thank you, Senator.
Senator Duckworth.
Senator Duckworth. Thank you, Mr. Chairman.
Mr. Dourson, when your nomination was announced in July of
this year, the Trump administration's EPA circulated press
releases proclaiming that there was a ``widespread praise for
Dr. Michael Dourson.'' Yet, when I reviewed this glowing yet
highly misleading document, I was struck by the absence of
public health leaders and dug a little deeper to figure out
why. And I say what I found was not pretty.
From the American Petroleum Institute to the Koch brothers,
it appears that you have no compunction about accepting
millions of dollars from the chemical industry to conduct
scientific studies on their behalf. This included a study
conducted in Chicago that was paid for by a Koch Industry
subsidiary, KCBX Terminals, which is an amazing coincidence.
Their study concluded that petroleum coke, or petcoke, as it is
known, which KCBX was pushing into the air and lungs of my
constituents in the south side of Chicago, was unlikely to harm
human health.
This finding, that was bought and paid for by the Koch
brothers, dramatically diverges from health assessments
published last year by the U.S. Department of Health and Human
Services experts on toxic substances and related diseases.
Their assessment was consistent with the common sense
observations of Illinois families who literally could see the
chemical byproducts floating in the air that they and their
children were breathing in.
My constituents needed experts such as yourself to stand up
for them and their health, rather than running cover for
polluters who are wealthy and willing to poison our children as
they put profits first.
Now, look, I understand that you were being paid by a
client to produce a result that would benefit the client's own
financial interests, and frankly, over the years, you seem to
have become quite good and quite comfortable at producing this
type of pseudoscience for the highest bidders. But manipulating
science to achieve a predetermined outcome is not what the
EPA's Office of Chemical Safety and Pollution Prevention should
be about. So you are applying for a very different job now.
In fact, EPA's own Web site makes clear that petcoke is
dangerous to human health. It defies common sense that inhaling
toxic particulate matter could be anything but poisonous for
people, and especially for children.
Olga Batista, one of my constituents who fought for her
family's right to clean air, told me, ``When I fought to get
the industrial petcoke out of our neighborhood in Chicago,
Michael Dourson was working with Koch Industries to minimize
our concerns. To charge him with seeing the chemical safety for
the entire country might be good for families like the Kochs,
but it certainly would not be good for families like mine.''
Anyone who could turn a blind eye to the environmental
injustices that the residents of Chicago have had to bear, as
you did, does not deserve my support, and I urge all of my
colleagues to join me in opposing your nomination.
Mr. Chairman, I would like to ask unanimous consent to
submit for the record a September 7 article from Midwest Energy
News.
Senator Fischer [presiding]. Without objection.
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Senator Duckworth. Thank you.
This article details the concerns of environmental consumer
groups about Dr. Dourson's troubling history of working for
Koch Industries to the detriment of public health. The article
states, ``A study funded by Koch Industries and carried out by
Dourson and two other scientists paid for by Koch found no risk
of adverse health impacts from exposure to petroleum coke in
the air or on surfaces in neighborhoods around the company's
two facilities. CDM environmental experts retained by the city
of Chicago issued several reports which flatly disagreed with
the conclusions by Dourson's colleagues and others hired by
KCBX that KCBX's operations were having little impact on the
neighborhood.''
Mr. Dourson, on EPA's Web site it states, ``Significant
quantities of fugitive dust from petcoke storage and handling
operations present a health risk.'' Yes or no, do you agree
with this statement?
Mr. Dourson. Senator, first of all, thank you very much.
The people of Chicago have every right to----
Senator Duckworth. No, reclaiming my time. My question is,
yes or no, do you agree with the EPA's Web site as it currently
states, ``significant quantities of fugitive dust from petcoke
storage and handling operations present a health risk.'' Do you
agree with that, yes or no? You are looking to go to work at
EPA. Do you agree with what is on their Web site right now?
Mr. Dourson. With all due respect, Senator, what we did
with the city of Chicago was looked specifically----
Senator Duckworth. I am not asking about what you did with
the city of Chicago. I would like to know do you agree with the
current statement. And if you are not willing to answer, that
is fine, but I am asking a very simple question. You are
applying for a job here at the EPA, and they say on their Web
site, right now, ``significant quantities of fugitive dust from
petcoke storage and handling operations present a health
risk.'' Yes or no?
Mr. Dourson. Senator, I am not really ready to answer that
question without----
Senator Duckworth. OK. Then I don't think you are ready to
go work at the EPA. Thank you.
I yield back.
Senator Barrasso [presiding]. Thank you very much, Senator.
Senator Ernst.
Senator Ernst. Thank you, Mr. Chair.
And thank you to all of our witnesses for appearing today.
Mr. Wehrum, I would like to start with you, please. You had
stated that Administrator Pruitt had stated, even during his
own confirmation process, that he will uphold the law. And I
know in my meetings with Administrator Pruitt he continuously
told me time and again that he will uphold the law. And last
week the EPA put forward a Notice of Data Availability that
would lower the annual biodiesel blending targets by the number
of gallons imported, yet still allow those imported gallons to
receive compliance credits.
The EPA is also considering allowing exported ethanol
gallons to qualify for compliance credits. Both of these moves
are contrary to the spirit of the renewable fuel standard and
would undermine the program.
Administrator Pruitt pledged to me, both in person and
before this Committee, to enforce the RFS as intended by
Congress. Will you pledge to uphold the spirit and the letter
of this law?
Mr. Wehrum. Senator, if I am confirmed, I would look
forward to working on these issues with you.
Senator Ernst. It is a law. Will you uphold the law?
Mr. Wehrum. As I said in my opening statement, Senator, I
share the Administrator's commitment to rule of law. That is a
big reason why I want to come to EPA and work with
Administrator Pruitt. He has a palpable commitment to that
outcome. The RFS is incorporated in the Clean Air Act, and my
goal, if confirmed, is to understand the law and implement the
law.
Senator Ernst. The intent would be to uphold the law,
correct?
Mr. Wehrum. Absolutely, Senator.
Senator Ernst. OK. That is the commitment that
Administrator Pruitt has given to me, has given to many others,
and this Committee, is to uphold the law. And I am hoping that
you will also uphold the letter of the law, which is the
renewable fuel standard.
Do you believe the major regulatory actions that change the
underlying operation of the RFS should be subject to full
notice and comment period?
Mr. Wehrum. Yes, Senator. If the RFS regulations are
changed, that should be done through notice and comment
rulemaking.
Senator Ernst. Absolutely. Thank you.
And as part of the EPA's 2018 RVO Rule, the Agency proposed
reducing the amount of cellulosic biofuel by 150 million
gallons, despite evidence of growing production and demand for
the second generation biofuel. If confirmed, can you commit to
ensuring that the cellulosic RVO numbers are based on an
objective analysis of expected production capability?
Mr. Wehrum. Senator, I am going to take half a step back
and just say this. The RFS is a very complex program, and there
are extensive provisions within the law that govern how it
should be implemented, and even more extensive regulations that
EPA has adopted. So I have to say I know a bit about the RFS. I
don't know everything about the RFS. So I said this before, but
I really mean it, if confirmed, part of what I need to do is
fully understand the program, and part of what I need to do is
fully understand your concerns, and I commit to you that I will
do that, Senator.
Senator Ernst. I do appreciate that, and we are happy to
assist in any way with the education process there.
The RFS is part of our code, it is the law, and we need to
ensure that that law is upheld. Regardless of ideology, the
goals of the RFS should be upheld. It is the law.
President Trump has repeatedly stated his strong support
for the renewable fuel standard on multiple occasions, and just
a few weeks back President Trump made a personal phone call to
Senator Chuck Grassley, reemphasizing how much he loves
ethanol, loves those biofuels, and so far his EPA is on track
to meet the deadline for annual rulemaking. That is important.
Will you commit to upholding the timeliness of the yearly
renewable volume obligations required under the RFS?
Mr. Wehrum. Senator, if confirmed, I will do everything I
can to make sure we stay on schedule. I understand that there
have been concerns with that in the past and EPA has had
difficulty keeping up with the schedule, so, if I am confirmed,
I will do everything I can to try to keep us on track.
Senator Ernst. OK. I appreciate your answers very much. We
will hold Administrator Pruitt to his commitment to uphold the
law. We will do the same of you. If there is a way that we can
be helpful in the education process when it comes to the
renewable fuel standard, I am ready to assist, my staff is
ready to assist, and I appreciate your commitment.
Thank you very much, Mr. Chair.
Senator Barrasso. Thank you, Senator Ernst.
Senator Merkley.
Senator Merkley. Thank you, Mr. Chairman.
Mr. Dourson, chlorpyrifos is a pesticide that is widely
used; you find it on a lot of the produce in the fresh
vegetable aisle at the grocery store. A lot of that produce has
been sprayed with this. A simple yes or no, has chlorpyrifos
been linked to brain damage in children?
Mr. Dourson. Although it would be inappropriate for me to
prejudge an issue within U.S. EPA since there are some staff
deliberations I am not privy to, if confirmed, I will ensure
that the issue is fully and fairly----
Senator Merkley. You have no knowledge about the studies
that have been done on this insecticide?
Mr. Dourson. No, I am knowledgeable of the studies.
Senator Merkley. Has it been linked to brain cancer in peer
reviewed studies?
Mr. Dourson. I am aware of the studies.
Senator Merkley. Brain damage. Has it been linked in these
studies? Can you answer yes or no? Has it been linked to brain
damage in children in peer reviewed studies?
Mr. Dourson. There are peer reviewed epidemiology studies
that show an association in one study and not others.
Senator Merkley. Mr. Chairman, I would like to submit for
the record the following peer reviewed study showing that
chlorpyrifos has been linked to brain damage in children.
Senator Barrasso. Without objection.
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Senator Merkley. You have been paid to assess the safety of
this chemical. Who paid you or TERA to assess the safety of
this chemical?
Mr. Dourson. In 2006, in 2005, we did two manuscripts----
Senator Merkley. Who paid you? That is the question.
Mr. Dourson. It was Dow AgroScience.
Senator Merkley. Thank you. So, my understanding of your
organization is that you ultimately recommended a safe level of
10 micrograms per kilogram per day. That standard is quite
different from the EPA floor for safety for children ages 1 to
2 of .0017 micrograms per kilogram per day. In fact, the safety
level you proposed in your study, paid for by Dow Chemical, the
very same company that makes this chemical, is 5,822 times less
protective than the level proposed by the EPA.
I would like to turn to alachlor and acetochlor, two
herbicides that are widely used. Simple yes or no, have they
been linked to cancer?
Mr. Dourson. We did the study for a collection of
industries----
Senator Merkley. Have they been linked? This is a yes or no
question. Your knowledge, your background, your life's work,
are you aware of these studies linking these chemicals to
cancer?
Mr. Dourson. I am aware of studies with neurological
disturbances with acetochlor.
Senator Merkley. But not cancer?
Mr. Dourson. I am not so sure I recall those data.
Senator Merkley. Mr. Chairman, I would like to submit for
the record the following peer reviewed study linking alachlor
and acetochlor to cancer.
Senator Barrasso. Without objection.
Senator Merkley. Thank you very much.
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Senator Merkley. Mr. Dourson, I understand you have been
paid to assess the safety of both of these chemicals;
therefore, your familiarity with them I anticipate to be
significantly more. What organization paid you to assess the
safety of these two chemicals? Just the name, please.
Mr. Dourson. Dow AgroSciences. And we also had Monsanto. I
believe both of them contributed to a collaborative project
that included a group of people, including government
scientists, that helped with the assessment.
Senator Merkley. Thank you. That is my understanding, those
two companies.
Mr. Dourson. Right.
Senator Merkley. Your organization ultimately recommended
reference dose for the degradates or breakdown products that
would translate to a safety level of 5,600 parts per billion.
That is a significantly weaker standard than the standard set
by the State of Wisconsin of 20 parts per billion, of Minnesota
at 60 parts per billion. In fact, the safety standard proposed
is 280 times weaker than standards set by Wisconsin and 70
times weaker than that of Minnesota.
The same trend is true for acetochlor. Your standards were
15 times weaker than standards set by Minnesota. This is a
disturbing pattern for someone charged with representing the
safety of our citizens from these chemicals.
Mr. Chairman, I would like unanimous consent to submit for
the record a letter from a wide range of worker advocacy
organizations, including many farm worker advocacy
organizations.
Senator Barrasso. Without objection.
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Senator Merkley. Thank you.
This letter states, ``The nomination of Mr. Dourson to be
in charge of chemical safety at the EPA is a threat to our
nation's children, farm workers, communities at the front lines
of exposure to chlorpyrifos.''
Flame retardants are chemicals that are used in everything
from car seats to couches. EPA has placed many of these
chemicals on its list of chemicals it wishes to examine first
under TSCA. Ten years ago the biggest companies that made these
chemicals formed an organization, Citizens for Fire Safety, to
promote their use.
In 2012 the group was found to have paid doctors to testify
against proposed legislation to ban the chemicals. These
doctors described heartbreaking stories about burned children
who died in their arms, but might have been saved if only flame
retardants had been used on their burning sheets and pillow
cases.
Just one problem--those children did not exist. These
stories were fabricated. Citizens for Fire Safety folded in
2012, right after this shameful scam was exposed. And I note
this because the very same flame retardant manufacturers that
backed Citizens for Fire Safety then announced they would
continue their advocacy efforts through the North American
Flame Retardant Alliance, which was part of the American
Chemistry Council. That Alliance consistently promotes the use
of flame retardants, downplays the risk to health, lobbies
against proposals to regulate them.
Mr. Dourson, according to documents you provided the
Committee, you were a member of the North American Flame
Retardant Alliance Scientific Advisory Council from early 2012
until just a couple months ago. You list being paid $10,000 in
consulting fees. You have led research funded by the same flame
retardant companies that were backing the Citizens for Fire
Safety and the Alliance.
Having taken this employment, this advocacy, it is simply
hard to conclude how you can be an objective and impartial
regulator when it comes to these flame retardants. If
confirmed, do you commit to recuse yourself from working on any
chemical safety matter related to flame retardants?
Mr. Dourson. Senator, we have--TERA and the University of
Cincinnati, has worked with a number of organizations for flame
retardants, including Consumer Product Safety Commission,
Health Canada, the National----
Senator Merkley. That is not the question I am asking.
Senator Barrasso. Senator, your time has expired.
Senator Merkley. It is a simple yes or no question.
Senator Barrasso. And there is a second round. We will have
plenty of time for a second round of questions.
Senator Merkley. Yes or no, Mr. Dourson? Can you answer the
question?
Senator Barrasso. I ask all members to keep this in their 5
minute rounds.
Senator Merkley. Well, we would be done if he would answer
the question, Mr. Chairman. It is a simple yes or no question.
Mr. Dourson. I will rely on the guidance from the EPA
ethics----
Senator Merkley. That is not sufficient. Thank you.
Mr. Dourson [continuing]. To determine any issues----
Senator Barrasso. You will have time for a second round of
questions to further pursue.
I would like to introduce for the record a letter from Dr.
James Klaunig, who served as Indiana's State Toxicologist for
over a decade, is now Professor of Indiana University School of
Public Health, who wrote, ``Dr. Dourson is an exceptional
scientist and leader in the fields of risk assessment and
toxicology. As the Assistant Administrator of the EPA Office of
Chemical Safety and Pollution, he would bring over a generation
of experience in chemical safety and human risk assessment'' to
submit for the record.
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Senator Carper. Mr. Chairman, I would like to ask unanimous
consent, if I could, to submit for the record an October 3rd
letter from the International Association of Fire Fighters to
members of this Committee. This letter expresses the
Association's strong opposition to the nomination of Dr.
Dourson.
Senator Barrasso. Without objection.
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Senator Barrasso. Senator Fischer.
Senator Fischer. Thank you, Mr. Chairman.
Mr. Wehrum, last week the EPA proposed to dramatically
change the RFS in a proposal that is typically just a request
for additional data. Moreover, there are press reports that EPA
wants to attach a compliance credit to exported biofuels, an
act that would completely undermine the integrity of the
program, not to mention, I believe, harm the reputation of the
United States as a fair trading partner.
I have some real concerns with the approach that the Agency
has recently taken on the RFS, especially after Administrator
Pruitt committed to me, in this room, as he did to Senator
Ernst, he also committed to me in two private meetings to
uphold the law as intended.
As you are aware, the RFS is the law until 2022. Are you
aware of that?
Mr. Wehrum. And beyond, Senator, yes.
Senator Fischer. And beyond. The EPA could look at it after
2022, is that correct?
Mr. Wehrum. That is correct, Senator.
Senator Fischer. What are your thoughts on the EPA's, I
believe, attacks on the RFS that we have been seeing lately?
Mr. Wehrum. Senator, as I responded to Senator Ernst
earlier, the RFS is a very complicated program, and I am not
apprised of all of the recent actions and all of the recent
activity under the RFS, but it certainly will be one of my
primary responsibilities, if confirmed to this position; and as
I committed to Senator Ernst, I will commit to you that I will
work very closely with you and with your staff and with your
constituents to understand your concerns, and my goal would be
to implement the RFS as faithfully and completely as I could,
Senator.
Senator Fischer. And as Senator Ernst asked, would you
commit that the RFS is the law, and it is in law until 2022?
Mr. Wehrum. Senator, there is no doubt the RFS is in law.
It is included in the Clean Air Act; it was an amendment to the
Clean Air Act.
Senator Fischer. Until 2022, at the earliest, when the EPA
could look at it?
Mr. Wehrum. Yes, Senator. So the statute specifies
renewable volume obligation goals through 2022, and then leaves
it to the discretion of the Administrator, in consultation with
others, to determine what those goals might be beyond 2022.
Senator Fischer. The Assistant Administrator of the Office
of Air and Radiation plays a key role in ensuring the RFS
functions according to congressional intent. And with the
President's commitment to the RFS and the biofuel production
that we see, would you commit to upholding the President's
commitment?
Mr. Wehrum. The President, Senator, would be my ultimate
boss, so our job is to implement the policy as the President
specifies.
Senator Fischer. According to the law.
Mr. Wehrum. According to the law, that is absolutely
correct.
Senator Fischer. Do you think that the EPA has the
authority to artificially reduce biofuel blending that runs
counter to the intent and the literal reading of the RFS law?
Mr. Wehrum. Well, Senator, I have said a couple times the
statute is pretty extensive, the statutory provisions; they go
on for many pages in the Clean Air Act, and the regulations are
even more extensive than that. What I do know is that there is
discretion built into the law for the Agency and others to use
in making sure that the law can be implemented according to the
law, but also be effective as a practical matter.
So I understand much of the concern is with regard to how
that discretion has been implemented, and again, I will fully
commit to you that, if confirmed to this position, that I would
work very closely with you to understand your concerns, to
understand the concerns of your constituents, and to try to
implement the law as best we can.
Senator Fischer. Do you believe it is the intent of the RFS
to increase the production of American made renewable fuels and
also to decrease our country's reliance on foreign oil?
Mr. Wehrum. I believe there is no doubt that that is the
case, Senator.
Senator Fischer. And is it in the best interest of our
national security that we have a reliable, stable fuel supply?
Mr. Wehrum. I believe that to be true, and energy security
clearly was one of the motivating factors behind the enactment
of the RFS, Senator.
Senator Fischer. And do you believe it was also the intent
of the legislation to have a balanced portfolio when it comes
to our energy sources in this country?
Mr. Wehrum. Senator, I am not exactly sure what you mean by
that. I would be happy to respond; I am just not sure what you
are getting at.
Senator Fischer. Well, I look forward to furthering our
understanding of the situation in future conversations.
Mr. Wehrum. As do I, Senator.
Senator Fischer. Thank you.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Fischer.
Senator Markey.
Senator Markey. Thank you, Mr. Chairman.
Mr. Dourson, you and the organization you have led, known
as Toxicology Excellence for Risk Assessment, have been
routinely paid and funded by chemical companies and polluters
defending the need for weakened chemical safety standard. For
example, in 2014 and 2017 you led two industry funded studies
that defended a safe level of exposure to the carcinogen 1,4-
dioxin that is 1,000 times greater than EPA's health based
safety level; 350 parts per billion versus EPA's .35 parts per
billion. One thousand times greater exposure to dioxin.
Dioxin is an industrial chemical found in a wide range of
products and known to frequently contaminate water systems.
According to water sampling studies conducted by the
environmental working group Water Surprise, for more than 7
million Americans in 27 States are contaminated with the
chemical at a level higher than EPA's health based standard.
Just last year the EPA announced dioxin to be one of the first
chemicals to be evaluated by the office to which you were
nominated under the new Toxic Substances Control Act, which I
helped to write.
Given your recent work defending a 1,000 times weaker
safety standard for dioxin than what the EPA determined will
cause cancer, will you recuse yourself from working on this
chemical if you receive confirmation for this position?
Mr. Dourson. Senator, I worked with a team of groups,
including five different U.S. States, three different
international organizations----
Senator Markey. Will you recuse yourself from the
consideration of dioxin?
Mr. Dourson [continuing]. Several consulting firms, and
several industries to advance the science that EPA put out in
its 2013 document----
Senator Markey. Will you recuse yourself? Will you promise
not to weaken the standard the EPA has set to protect the
public's health against the carcinogen dioxin? Will you not
weaken that standard?
Mr. Dourson. If confirmed, I would bring new science and
thinking into the Agency and----
Senator Markey. Your science says that dioxin can be
exposed to by human beings at 1,000 times greater rate than the
EPA has determined is safe for human beings. Will you recuse
yourself?
Mr. Dourson. This new information is new information and
new science since the time of the EPA document----
Senator Markey. I hear you. You are not going to give us a
commitment, Mr. Dourson. And what is going to happen is, when
you arrive at the EPA, you are going to have been the
defendant's chemical lawyer, who then becomes the judge over
the very science, bogus science which you have been
propounding. You are not just an outlier on this science; you
are outrageous in how far from the mainstream of science you
actually are.
They are giving out the Nobel Prizes in chemistry this
week. If there was a Nobel Prize in chemistry in reverse, you
would be the clear winner this week in the United States and
the world. This is an absolute atrocity.
Let me move on, then, to TCE, a volatile organic compound
and common industrial solvent that has been linked to cancer,
congenital heart defects, other health issues. It is a route by
which humans actually contract cancer. Because of the wide
range of health concerns that can occur through even short-term
exposure to TCE, the EPA has proposed banning TCE in commercial
vapor degreasing and dry cleaning. Other uses of the chemical
have been prioritized by the EPA for assessment under the
updated TSCA law.
A study you led and funded, Mr. Dourson, in 2016 proposed a
safety range for TCE that is 1.5 to 15 times less protective
than the EPA's own drinking water standard. Given that the EPA
will soon be finalizing its proposals on TCE for certain uses,
and assessing the remaining uses for regulation, will you
commit to not working to weaken the standards the EPA has
already proposed?
Mr. Dourson. Again, Senator, based on existing science, EPA
came out with an assessment. Subsequent to that science, I
worked with a consortium of individuals and groups of various
sectors to bring additional science to EPA's good questions. It
is inappropriate for me to prejudge an issue, but if confirmed,
I will ensure that the issue is fully and fairly considered in
a publicly transparent manner.
Senator Markey. Mr. Dourson, it is pretty clear that you
have never met a chemical you didn't like, and your previous
studies have already prejudged the exposure. You are a
scientist who already did work on this subject, and you have
come to conclusions which are fundamental threats to the public
health and safety of this country. You should commit here to
recusal on the issues where you have already reached
conclusions.
Mr. Dourson. The published paper we used, Senator, was
using U.S. EPA safe doses and also EPA's method for estimating
ranges.
Senator Markey. EPA found 1.5 to 15 times higher risk than
you did, and that is not consistent with the conclusion----
Senator Barrasso. There will be a second round of
questions, Senator, for your opportunity.
Senator Boozman.
Senator Boozman. Thank you, Mr. Chairman. I am about to
lose my voice, but I did want to ask a couple questions.
Mr. Ross, in recent years EPA has made it increasingly
difficult for Arkansas to manage its delegated national
pollutant discharge elimination program and responsibilities
under the Clean Water Act.
Too often, permits, rulemakings, or other actions sent to
EPA for review were returned with demands for more restrictive
requirements, additional expensive data collection, or other
costly, onerous requirements. New leadership at EPA has an
opportunity to correct this coercive federalism and instead
restore cooperative federalism, as intended.
The States have the expertise and local knowledge necessary
to administer our environmental programs. The EPA has been
proud to say that the States are essentially in charge and that
they will defer to them, and that is true, as long as they
agree with what the States come up with.
I guess the question is EPA has the opportunity to play a
significant role in supporting a move back to cooperative
federalism. Can you please explain how you plan to change the
EPA's State dynamic?
Mr. Ross. Thank you for the question, Senator. I do believe
strongly in cooperative federalism. One of the things that I
have heard in the run up to this hearing, and also working for
two different States over the last several years, is the
frustration in the relationship between the Federal Government
and the State government, and I commit to taking that head on.
And one of the ways that I have heard is to make sure we get
outside the Beltway; to go out, work with States, figure out
the relationships, and listen and develop a common relationship
on how best to manage our nation's resources.
Senator Boozman. Very good.
Mr. Wehrum, more than 1,000 U.S. companies and
organizations sent a letter to Congress and the Administration
calling for lawmakers to preserve the voluntary Energy Star
program that was recently proposed for elimination. This
program, founded in 1992 during the Bush administration, is an
extremely successful public-private partnership model.
Consumers enjoy the benefits of the program, which encourages
innovation and has saved taxpayers over $430 billion since
1992.
Do you view the Energy Star program as a successful public-
private partnership?
Mr. Wehrum. Senator, Energy Star is a unique program, and
products that are allowed to carry the Energy Star label must
be shown to be cost effective, energy efficiency technologies,
which means they pay for themselves over time, so a very strict
criteria are applied to deciding where the Energy Star label
can be applied. So it is a different kind of program because it
is a voluntary program and not a mandatory regulatory program,
and it is a program that has been widely used in many different
industries.
Senator Boozman. So you think it has been successful?
Mr. Wehrum. Personally, I do believe it has been
successful, Senator, yes.
Senator Boozman. Thank you.
Dr. Dourson, for the past 8 years EPA has acted as a
political arm of the Obama administration. Time and time again
we have seen rules developed not based on sound science, but on
political ideology. When rules have been released, States, the
private sector, and even Congress have had trouble getting EPA
to show the science that helped develop these rules. As an
Assistant Administrator of the Office of Chemical Safety and
Pollution Prevention, can we expect EPA to be more transparent
as to how rules are developed?
Mr. Dourson. Yes, Senator. My career has been based on
transparency and collaboration, and I intend to do so if
confirmed.
Senator Boozman. Good. That is very, very important, to
have access. It is one thing to come out with a finding, but
certainly that needs to be transparent. We need to have the
ability to see the science behind it.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Boozman.
Senator Booker.
Senator Booker. Thank you, Mr. Chairman.
Mr. Dourson, I have to say, and you have heard from my
colleagues, that I have only been in the Senate for 4 years.
But your nomination is one of the more shocking that I have
seen, and your job that you are being nominated to, as my
colleague just said, is to the Chemical Safety and Pollution
Prevention Office, and the mission, as I hope you have
memorized, frankly, is to protect families and the environment
from the potential risks from pesticides and toxic chemicals.
You heard already from some of my colleagues; Senator
Duckworth talking about the south side of Chicago. I live in a
community that has seen the effects of corporate villainy to
the point now that our soil is poisoned; we can't plant many
places in our city. The air is poisoned, asthma rates, lead
poisoning rates, the water is poisoned because corporations,
pressing their hand and their power and their money, have been
able to poison communities to the extent that you have autism
rates, birth defects, cancers in our children in places in this
country that are unconscionable.
And I really hope, as you sit there on your perch right
now, that you have the capacity to have empathy for those
people, many of whom are sitting behind you right now, who view
your nomination with fear, with anguish. And that fear and
anguish is not partisan; it is not coming from the thin air. As
you have heard from my colleagues, it is coming from looking at
your record.
I would imagine that somebody would be nominated that has a
track record of standing up for those vulnerable people in our
nation. But my colleague after colleague has now pointed out
what you have been doing with your professional career. And I
will just go through, because it almost seems like a bit of a
scene out of some Disney movie where there are corporate
villains that do harm to our environment, or at least seek to
if it weren't for the heroic actions of others.
So, this is the process. First, a company or industry
identifies a problem, and you have already talked to Dow and
Monsanto and chemical companies like this, and they want to
exercise influence to stop safety measures being done by
governments. So, what happens is that the corporation hires
your organization, TERA, to come up with a recommendation, a
safety standard so that they can try to defend their desire to
put more poisons into the atmosphere, into the soil, and into
our water. So, what happens is that you come up with the
science to back up these corporations.
But I try to give this a fair measure. I mean, the surface
information I received was so astonishing that you would be
sitting where you are as a nominee that I wanted to dig into
some of the stuff, and came up with the same things that other
folks came up with. You have heard these chemicals now
mentioned by my colleagues--alachlor and acetochlor. They are
banned in the European Union. Literally banned. You all
advocated for limits in the water based on your science that
ended up being 280 times higher than the State of Wisconsin
believed was safe for their kids.
So, I know that you can pick your chemical here. The
pattern I have seen from just looking at your record, sir, goes
again and again and again. Corporations fund studies from TERA
and have science on here is chlorpyrifos that literally comes
out. Your studies, this one, in the case of that chemical, that
affects farm workers and children, was 1,000 time higher than
the ultimate EPA standard. A thousand times higher.
So clearly, to me, we have a situation where you are about
to be the person that is a head of an office that has the
mission of protecting children, and you have a pattern of
working with corporations to advocate for a position that is
hundreds, if not thousands, of times more dangerous than the
standards we set and that we see other nations who are moving
to ban the very chemicals that you have been advocating for as
safe at higher levels.
The Chairman said that you have been a leader, read a
letter that calls you a leader in human risk assessment. I
don't see this as leadership when you are advocating for levels
that will literally poison people. It doesn't make you seem
like a leader in your career; it seems like you are a lackey, a
corporate lackey doing the bidding of people that are trying to
create in communities like the one I live in, where my niece
was born, to create environments that are chemically toxic.
So, I have heard you not answer this question over and over
again, but I am appealing to you to recuse yourself. It seems
logical and legal that you would recuse yourself from making
decisions on chemicals from companies that have paid you. And I
don't understand any defense to that. If these corporations
were going to be advocating for standards that you set at
levels that poison human beings, it seems logical that you
should not be now the judge of whether those chemicals should
be released, or changing standards that now will reflect what
those corporations wanted.
So, I doubt I am going to get it, but will you recuse
yourself, sir?
Mr. Dourson. Senator, I will follow the EPA ethics
officials' determination for any recusal.
Senator Booker. And that is the point I will conclude with,
sir, because you are going to follow the ethics that you think
that the EPA is going to give you, and I am talking to you not
just about ethics and law, but I am talking to you about
conscience and moral values.
And it seems like you have been willing to bend those
ideals, because I don't know if you have children, I don't know
if you have grandchildren, I don't know if you have nieces or
nephews like me, but I doubt you would let them live next to
the companies that are spewing this stuff in the air. You would
not let them live there and accept standards in their
atmosphere that you have been claiming for your entire career
are safe. You would not do it. But you are advocating for
positions, and there are people here right now, you are
advocating for positions that are going to endanger those
children that are in those communities.
Thank you very much.
Senator Barrasso. And there will be time for a second round
of questioning.
I would like to submit for the record a letter by Dr.
Jennifer Seed, who has worked for 23 years in various positions
at the Office of Pollution Prevention and Toxics at the EPA,
who wrote that Dr. Dourson has a long history of supporting
regulatory agencies both at the State and Federal level. As an
EPA employee, he played a paramount role in the development of
risk assessment practices that are now used internationally.
Unanimous consent that the letter be admitted.
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Senator Carper. Mr. Chairman, I would also like to ask
unanimous consent to submit for the record a September 19th
letter from several environmental organizations to members of
our Committee, and on behalf of their millions of members,
these organizations write to oppose the nominations of Dr.
Dourson and Mr. Wehrum. It has raised serious concerns
regarding the nominations of Mr. Ross and Mr. Leopold to their
respective positions at the Environmental Protection Agency.
Senator Barrasso. Without objection.
Senator Carper. Thank you.
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Senator Barrasso. Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman.
Dr. Dourson, if you are confirmed to lead the Office of
Chemical Safety, you will be responsible for implementing the
TSCA reforms passed by Congress last year. This Committee has a
strong interest in making certain that TSCA reforms are
implemented properly and in a timely fashion.
Can you commit to us that you will keep Congress apprised
of the status of TSCA implementation and answer congressional
requests for information about the program?
Mr. Dourson. Yes, Senator. As I said in my opening
statement, the Lautenberg Chemical Safety Act was a significant
milestone, celebrated broadly by scientists in my sector, so I
will commit to working with this Committee and Congress to make
sure it is implemented correctly.
Senator Rounds. Dr. Dourson, in the prior administration we
heard reports of the EPA not using up to date or the most
relevant science when making chemical safety decisions. Can you
explain to me your views on the importance of science at the
Agency, particularly in the decisions being made by the Office
of Chemical Safety?
Mr. Dourson. Senator, good science and use of good science
is a touchstone of everything that U.S. EPA does, and other
Federal agencies, I am sure, as well. Bringing good science and
doing it in a collaborative and transparent manner has been my
life's passion. Collaboration is important, and if confirmed, I
will work with the talented people of the Office of Chemical
Safety and Pollution Prevention and make sure that the best
science is looked at and reviewed, and used to protect the
public health, including the most vulnerable members of our
population.
Senator Rounds. Let me get into this a little bit more,
because when we talk about sound science, and we talk about
good science, the science community has a unique way of looking
at the way that it is reviewed, the way that we go about
establishing the processes, and so forth. You are a scientist.
Can you share with the Committee your analysis of what makes
good science and sound science, and what the expectations
should be of this Committee of the EPA in the way that they set
up work with the science community to develop recommendations
based on sound science? What goes into it?
Mr. Dourson. Well, the sound science, if you would take a
particular chemical, it doesn't matter which one for an
example, you would look at all the available information on
that particular chemical.
Senator Rounds. Who looks at it? Who looks at the
information?
Mr. Dourson. Well, it would be the scientists within the
Office of Chemical Safety and Pollution Prevention, and it
could be exposure science, it could be toxicology, it could be
epidemiology. But you bring all this together, and you work
with teams within the organization to review all this data. The
next step is to look and winnow out and use the most
significant or credible science on which to make the basis,
your assessment of chemical safety or exposure. And once that
determination is made, you do this in an open fashion, you ask
for information, then you have an independent peer review.
Senator Rounds. Talk about that a little bit. I think that
is the important part here that sometimes gets missed.
Mr. Dourson. Well, the independent peer review, U.S. EPA
has several ways to do this, and they have several very good
organizations within U.S. EPA. The Science Advisory Board, of
which I have served as a member until just a couple days ago
when my 6-year term was up, is an example of very good
independent peer review. They are independent of the Agency,
the group within EPA that does this, and they bring scientists
from the outside sector that are multiple disciplines and also
multiple sectors in to review the information that EPA puts
out. That is very important.
Another important thing is access to all of the available
data. There are sometimes studies you don't have access to the
raw data. Sometimes that is difficult to make decisions in that
case.
Senator Rounds. OK.
Mr. Ross, in the last Administration we uncovered several
instances in which regulations were promulgated by the EPA
without taking into consideration the opinions of the Science
Advisory Board or not properly submitting information to the
Science Advisory Board to review prior regulating.
If confirmed, will you commit to relying on the best
available science when regulating?
Mr. Ross. Absolutely, Senator. I think sound science,
together with the proper application of law, are the twin
pillars of sound Government policy decisionmaking, so
absolutely.
Senator Rounds. Thank you.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much, Senator Rounds.
Senator Harris.
Senator Harris. Thank you.
Mr. Wehrum, section 209(b) of the Clean Air Act recognizes
California's authority to increase air pollution standards for
new motor vehicles. I am sure you are familiar with that.
Mr. Wehrum. I am, Senator.
Senator Harris. And I have an e-mail that is dated March
15th, 2006, from you to the EPA staff, where you told staff
that you thought the EPA should preempt California and deny the
waiver.
And Mr. Chairman, I would like to enter that into the
record.
Senator Barrasso. Without objection.
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Senator Harris. Also, in 2008 there was a House Committee
on Oversight and Government Reform investigation showing that
the EPA career staff and lawyers unanimously and uniformly
thought the waiver should be granted.
And I have that document as well, Mr. Chairman, that I
would like entered.
Senator Barrasso. Without objection.
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Senator Harris. Will you commit, if confirmed, to follow
the science and law, and heed the advice of career staff in the
Department, and recognize and preserve California's authority
to issue its own new motor vehicle standards as it relates to
emissions?
Mr. Wehrum. Senator, the provision that you refer to, in
appropriate circumstances, certainly does allow California to
implement its own motor vehicle standards, and my commitment to
you would be to understand that provision as much as possible
and implement it as faithfully as possible.
Senator Harris. And are you familiar with the several
decades of practice and court decisions that make it clear that
the EPA should be deferential to California and only deny the
waiver if the EPA could ``affirmatively demonstrate that
California, or any State, was arbitrary and capricious''?
Mr. Wehrum. Senator, EPA has an obligation to review waiver
requests and make a determination if they are adequate in light
of the criteria set out in that provision, yes.
Senator Harris. OK. And you are familiar with these decades
of practice that have made that finding?
Mr. Wehrum. I can't say I am familiar with every single
waiver that has been issued, but I am familiar with the waiver
process, Senator.
Senator Harris. OK. I would urge you to become familiar
with it, if confirmed. Thank you.
Mr. Dourson, in my home State of California, the city of
Santa Clarita has struggled with groundwater contamination from
perchlorate. The toxic chemical is a byproduct of producing
munitions and rocket fuel, and it affects the thyroid's ability
to regulate metabolism and guide a child's development.
In Santa Clarita, for more than 50 years, the Whittaker
Bermite Corporation contaminated the soil and groundwater
across a 1,000-acre site in the heart of the city. You, sir,
were hired by companies that have used perchlorate, like
Lockheed Martin and Boeing, to study this toxic chemical, and
you rewarded them by marking that the safe level would be eight
times higher than what the EPA said would be safe.
In 2013 the EPA's own independent Science Advisory Board
asked you to recuse yourself from perchlorate matters because
of this conflict of interest.
Can you commit to this Committee that you will recuse
yourself from any EPA decision having to do with perchlorate?
Mr. Dourson. Again, Senator, I am going to rely on guidance
from EPA ethics officials to determine any issues for which I
need to be recused.
Senator Harris. Sir, you profess to be a professional. And
you must be, then, aware that professional standards as it
relates to ethics, and as my colleague has mentioned, also
moral standards, would demand that we are aware of not only an
appearance of conflict, but actual conflict. And if we are to
be leaders, it would suggest to me that you, as a leader, as
you say, in this field, would understand the importance of
making the decision yourself, instead of waiting for someone
else to tell you that you should recuse yourself from these
matters.
Are you going to wait for permission from the ethics to
exercise your discretion as it relates to other matters? Do you
believe you possess discretion in this position, if confirmed?
Mr. Dourson. Senator, as I stated in my opening statement,
I commit my mind, body, and spirit to protecting the public
health, if confirmed, in this organization, the Office of
Chemical Safety and Pollution Prevention. The staff is very
talented. I would be humbled and honored to serve with them,
but ultimately protect the public health, including those
sensitive members of the population.
Senator Harris. Are you aware that, if confirmed, you would
have the discretion to recuse yourself and would not have to be
ordered to do so by anyone?
Mr. Dourson. Again, I can depend on EPA ethics officials to
advise me in that capacity.
Senator Harris. Are you aware that you would have the
discretion to make that decision, sir?
Mr. Dourson. I would, again, defer to EPA ethics officials
to advise me in that capacity.
Senator Harris. I have nothing else.
Senator Barrasso. Thank you, Senator Harris.
Senator Wicker. Thank you, Mr. Chairman.
Dr. Dourson, am I pronouncing your name right?
Mr. Dourson. Yes, sir.
Senator Wicker. My first question deals with the Federal
Insecticide, Fungicide, and Rodenticide Act, FIFRA. As we all
know, pesticide policy in the United States is supposed to
involve a balancing act between the potential hazards of a
pesticide and the benefits of the product based on real world
impacts. Pesticides can poison you, can hurt people. But
without pesticides, we would not be able to supply the world
with food and fiber as we do; hence, the balancing act with
real world facts under FIFRA.
There is a feeling that, under the Obama administration,
decisions were made by EPA that were beginning to resemble not
what we call facts on the ground, but a precautionary approach
to regulation, where regulatory action was taken to prevent
theoretical risks, unproven risks. So would you please comment
on that issue, and will you tell the Committee about your
commitment to science based risk assessment of pesticides under
FIFRA?
Mr. Dourson. Senator, my career, including more than a
decade as an EPA scientist, focused on protecting public health
by developing, reviewing, and communicating risk assessment
values done in an impartial and objective and transparent way.
If confirmed, I commit myself to you and this Committee, and to
the American people, to continue in that effort.
Senator Wicker. Well, OK. Do you have any insights to give
to the members of the Committee about my concern or the
concerns of people like me that there has been too far of a
move toward precautionary regulation and prevention of
theoretical and unproven risks, rather than facts on the
ground?
Mr. Dourson. The area that I study and work in, and the
area of the Office of Chemical Safety and Pollution Protection
risk assessment is preventive medicine. In some regards, it is
precautionary. However, there have been tendencies in certain
cases to be additionally precautionary, more protective than
needed, and you are correct, Senator, in those particular
situations you might have an erosion of this balancing act
within FIFRA.
If confirmed, I will go in and work with the talented staff
of the Office of Pesticide Programs and bring impartiality to
it, or maybe maintain that balance if it is already there, so
that you can be assured and the American people can be assured
that FIFRA is regulated in the way it is intended to be
regulated as a balance between risk and benefit.
Senator Wicker. OK.
Well, let me move, then, to Federal procurement of wood and
guidelines from the Federal Government and from EPA in that
regard.
I can tell you that folks in my State of Mississippi feel
that the Federal Government has unduly discriminated against
domestic lumber and domestic wood production by this adherence
to one form of certification from the Forest Stewardship
Council, ignoring and to the detriment of other initiatives
such as the Sustainable Forestry Initiative, SFI, or the
American Tree Farm System, ATFS.
What do you know about that, and do you have any
information to share with the Committee about guidelines issued
for purchasing lumber and wood discriminating against
domestically produced wood?
Mr. Dourson. Senator, I am not familiar with that
particular issue, but if confirmed, I would be more than happy
to work with you individually or this Committee and appropriate
Chemical Safety and Pollution Prevention staff to make sure
that such discrimination is at least understood, and if not
appropriate, to be removed.
Senator Wicker. And I will note, Mr. Chair, that I asked
Administrator Pruitt essentially the same thing when he was
here in January.
So, doctor, I would just like to make sure, will you commit
to working with me and your colleagues at EPA to fix this
flawed policy so that EPA promotes the use of all domestic
forest products in its purchasing policy?
Mr. Dourson. I would be happy to work with you, Senator, on
that.
Senator Wicker. Now, Mr. Chairman, my time has expired. I
understand we are going to have a second round. If I could
squeeze in a quick question, I could be out of your hair.
Senator Barrasso. Senator Gillibrand, you are next. Are you
OK with him doing that?
Senator Wicker. I am sure she will love the question.
[Laughter.]
Senator Wicker. Because I was going to ask Dr. Dourson, Mr.
Leopold, Mr. Ross, and Mr. Wehrum did they agree or disagree
that Waters of the United States and the Clean Power Plan
involved a reach beyond the authority granted the EPA by
Congress.
And we will start with Mr. Wehrum down here.
Mr. Wehrum. Well, I can speak to the Clean Power Plan,
Senator, and I think I would just refer to the action of the
U.S. Supreme Court, which, in an unprecedented move, stayed
implementation of the Clean Power Plan even before the D.C.
Circuit had rendered a decision on the underlying litigation.
The Court has never taken an action like that in its history,
and I think it says a lot about that Court's perspective on the
legal viability of the CPP.
Mr. Ross. Senator, I can speak to the Waters of the United
States litigation, and I will defer to the same thing. There
are two Federal courts who have taken the extraordinary step of
staying implementation of a rule both on procedural and
substantive concerns. So I think the courts have sent the
message as to whether or not there are some legal infirmities
there.
Mr. Leopold. Senator, I will echo the comments of my
colleagues here and that courts have taken extraordinary steps
that are unprecedented in staying both of those regulatory
actions. Thank you.
Mr. Dourson. Senator, as a scientist and not a lawyer, I
think I will withhold comment about the legalities of this
particular thing. As a member of EPA's Science Advisory Board,
however, this rule came through us, and I had some comments on
that and some scientific risk issues that were raised during
the meeting. But again, I have no comments on the legality.
Senator Wicker. Are those a matter of public record?
Mr. Dourson. Yes, Senator, they are.
Senator Wicker. OK. Could you make those available to the
Committee?
Mr. Dourson. Sure. Absolutely.
Senator Wicker. Thank you.
And let the record reflect that I owe Senator Gillibrand at
least my 3 minutes.
Senator Gillibrand. I will hold you to that.
Senator Barrasso. Senator Gillibrand, thank you for your
patience. Thank you. Appreciate it.
Senator Gillibrand. Thank you, Mr. Chairman.
Mr. Dourson, today, in the audience, are New Yorkers whose
lives have been personally impacted by the chemical PFOA:
Michael Hickey, Laureen Hackett, Gwyneth Young, and Lee Marby.
They live in the village of Hoosick Falls, New York, and the
town of Petersburg, New York, two neighboring communities that
together are going through a gut wrenching experience of
discovering that their drinking water, the water that they
drink, the water they give their children, the water they cook
in, the water they bathe in, is contaminated by PFOA. Michael
Hickey has lost his father to kidney cancer, and they have
family members, friends, and neighbors affected by illnesses
that are known to be linked to PFOA.
These families are so frightened. I live so close to where
they live. I can't imagine what it would be like to live and
not know if the water that your children are being bathed in is
safe; if they are going to get cancer when they are 25; if they
are ever going to be able to have kids. Their lives are so
affected by the decisions that you have made, and I don't think
you recognize when you are hired by a company, when you are
hired by the DuPonts of the world, when you are hired by the
Monsantos of the world, you are being asked to change how
governments, how leaders look at these risks and whether they
say it is safe or not.
We have lived through this. After 9/11 the EPA said the air
was safe. Do you know how many people in their 40s and 50s and
60s have died of cancers you would not see in people who are
younger than 80? Because you have such a responsibility. You
are no longer being paid for your opinions. You are here as a
public servant. Your job is to serve the people sitting behind
you. Your job is to look at their children in the same way you
would look at your own children or any other person you love.
And the decisions that you are going to make will affect
hundreds and hundreds of more children just like them.
Now, you have refused to answer the question that my
colleagues have asked you, if you would recuse yourself. If I
was you, I would recuse myself over and over again if I was
paid for a determination that in many instances were multiples,
hundred times, thousand times more than what the EPA has
recommended.
Now, I can take you through the drill. Do you believe that
PFOA has been linked to cancer, including kidney cancer?
Mr. Dourson. I believe the scientific studies associated
with PFOA indicates that it is linked to some kinds of cancers.
Senator Gillibrand. Concerns about PFOA are not unique to
upstate New York, but your organization, TERA, was hired to
assess the safety of PFOA in West Virginia in 2002. We know
that DuPont manufactures PFOA in Parkersburg, West Virginia,
and I understand they paid you for that assessment, correct?
Mr. Dourson. The State of West Virginia hired us to do that
assessment, Senator.
Senator Gillibrand. Was DuPont involved at all?
Mr. Dourson. Senator, I don't know about where the State of
West Virginia got its money.
Senator Gillibrand. Did TERA recommend, in a risk
assessment, that water with PFOA levels of up to 150 parts per
billion was safe to drink?
Mr. Dourson. No, Senator, TERA did not; that was a
collection of 10 individuals, 5 of them government agents,
government employees, 4 of them U.S. EPA that made a consensus
decision on that.
Senator Gillibrand. But it was 150 parts per billion.
Mr. Dourson. The science at the time indicated in a
consensus manner of all the scientists at the table that that
was the appropriate level to base it on.
Senator Gillibrand. Did you know that DuPont had an
internal recommendation guideline of 1 part per billion at the
time?
Mr. Dourson. Our understanding at the time was the 1 part
per billion was a placeholder; it wasn't based on a full
reading of the science. They were waiting for the science panel
to do it.
Senator Gillibrand. Do you know that EPA has a health
advisory level of .07 parts per billion?
Mr. Dourson. The science has progressed, significantly
advanced since the time of 2004, and the new science indicates
a lower level.
Senator Gillibrand. Do you know that in Hoosick Falls they
have found contamination at .66 parts per billion, which at the
level you determined would save 150 parts per billion is 228
times higher than the parts per billion that is actually
occurring today in Hoosick Falls?
Mr. Dourson. Well, again, the science has progressed since
the time of the consensus decision of the 10-member panel in
2004. I am not aware of the specific----
Senator Gillibrand. So here is my fundamental question.
Mr. Dourson [continuing]. Exposure in that particular
location, however.
Senator Gillibrand. In the job you are about to take, will
you commit that you will maintain the .07 parts per billion
standard?
Mr. Dourson. Senator, if confirmed, I will commit to
protecting the American public and its most vulnerable members
using the best science and working with the talented people of
the Office of Chemical Safety and Pollution Prevention. We will
bring the best science forward; we will be transparent; we will
be collaborative. I commit to that.
Senator Gillibrand. Mr. Chairman, can I just ask unanimous
consent to submit for the record two articles from West
Virginia, a West Virginia news source? The first quotes a
watchdog group formed to ensure companies remain liable for
pollution for damages of PFOA, and the article concluded
Michael Dourson spent his career helping chemical companies
cover up deadly chemical contamination, and he was directly
complicit in the PFOA contamination crisis that seriously
harmed thousands of West Virginians and Ohioans. This
nomination is a classic example of the fox guarding the hen
house.
Senator Barrasso. Without objection.
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Senator Barrasso. Thank you, Senator Gillibrand. Thank you
for your patience.
Senator Cardin.
Senator Cardin. I am not exactly sure how to begin on this,
but I think I will start with Mr. Leopold. I have a major
concern for the safety of the people in Baltimore. On September
the 18th of this year a cloud of chlorosulfonic acid leaked
through a valve at Solvay Industry plant in Baltimore. I don't
know if you are familiar with that or not.
Thousands of my constituents were told to shelter in place
for several hours that morning and early afternoon over fear of
their health and safety. It is my understanding that this bill
is colorless, and it is very difficult to know its presence
other than the effect it has on your skin and respiratory
tract. It can be fatal. It is extremely dangerous.
And I would like to get your understanding of what role you
will play as counsel in dealing with protecting the people of
Baltimore and this nation on this issue. On June 9th
Administrator Pruitt signed a final order to further delay the
effective date of the RMP Rule amendment, known as the Chemical
Accident Safety Rule, for 20 months, until February 19th, 2019.
So I want to get some of your views as to what role you are
going to play on implementing the laws of this country through
regulations so that we are not bearing in Baltimore this type
of safety condition. This is not hypothetical; it happened just
a few weeks ago.
So how do you see your role, if confirmed, in using the
enforcement of our laws to protect the public health of the
people of this country?
Mr. Leopold. Thank you, Senator. I think the general
counsel's role on this issue--and my concerns are certainly
with the people of Baltimore and those who have experienced
releases of chemicals--I think the role of the general counsel
of the EPA is to approach this issue as it would any legal
issue; to look at the statutes, the regulation the EPA
administers.
And in this case EPA has emergency response authority,
which in an Office of Emergency Response, which it could
activate. I am not privy to any details about what is occurring
in the Agency at the moment, but----
Senator Cardin. Emergency response is one thing. Preventing
this is something else. The delay of the rule is delaying
protection. Do you believe that you would have a role in making
sure that we get timely action taken on these types of rules?
Mr. Leopold. Well, I think the General Counsel's Office,
again, the role is to advise the program offices and the
Administrator on their authority, and if the Agency has
discretion, we would advise, the discretion and the statutory
bounds in which the Agency has to operate. Again, that is the
role of the counsel, but certainly my commitment, as is the
Administrator's, is to the rule of law. And if the law requires
a substance to be regulated, I would advise of that, Senator.
Senator Cardin. And of course, delay is denying the
regulation of the law. So they may have discretion of delay,
but do you see an obligation to make sure that the laws that we
passed are carried out?
Mr. Leopold. Absolutely, Senator. The obligation of the EPA
is to implement the laws that are passed by Congress. In
certain instances, the Agency has discretion on when to
exercise that discretion, and in other instances statutes are
very specific about when the Agency has to take action.
Senator Cardin. I hear you. I would like to get a greater
comfort that public safety is the reason why we pass these
laws. There may be discretion on delay, but delay can cost
people lives, so there needs to be a sense of urgency on public
health.
Mr. Ross, quickly, if I might. We have had several
discussions about the Chesapeake Bay Program and the fact that
it is a unique program; it is local governments up, we have all
the stakeholders working together. Mr. Pruitt, in his
confirmation hearing, said very nice things about the
Chesapeake Bay, so I assume you are going to say nice things
about the Chesapeake Bay Program.
Mr. Ross. Yes. Thank you for the question. A couple months
ago I had the distinct pleasure of driving 16 hours across
country with the little ones back here to go from Wisconsin. We
dropped our children off at a YMCA camp along the Chesapeake
Bay in Maryland, in your State, and my wife and I continued out
to the Delaware shore in your State, Senator Carper. So I care
very deeply about where my kids play and swim, and the water
quality, and I think the Bay is a treasure.
Senator Cardin. Let me just point out that this Committee
just reauthorized the Chesapeake Bay Program, the Federal role
in the Chesapeake Bay Program by unanimous vote, and we
authorized it at a higher level than the current appropriation
levels. It is a clear signal that this program is supported,
and for the benefit of your children, we hope that you will be
a strong advocate to help us as one of the stakeholders,
because without the Federal Government's significant role in
this, it is hard for the other stakeholders to work together,
because Federal participation is the glue in a program that is
really popular among the six States and the District of
Columbia and the stakeholders. So we will hold you to helping
your children preserve this great heritage.
Thank you.
Senator Barrasso. Thank you, Senator Cardin.
Mr. Ross, having served both the State of Wyoming and
Wisconsin, I think you have an immediate understanding and an
intimate understanding of many of the different types of water
issues faced by States across the country. Senator Wicker
raised some questions about the Waters of the U.S. Could you
please just explain to the Committee how you intend to work
with western States to solve some of the water and water
scarcity issues faced in Wyoming and elsewhere?
Mr. Ross. Yes. You put your finger on it. I have worked in
California, and I studied in Vermont, I have worked in
Wisconsin, I spent time in DC; I spent a lot of time in
Wyoming, and what I have learned is that each region, each
State has unique challenges; and the issues out west are both
water quality and water quantity, and that is a really
difficult intersection.
And there are some amazing folks, including in Wyoming, the
State engineer, the director of the Department of Environmental
Quality, they are subject matter experts that understand the
issues as well as anyone. My job is to go learn from them and
to make sure that the Federal Government works collaboratively
with the States to protect the resources.
Senator Barrasso. And Mr. Baran, I wanted to just follow
up. The National Environmental Policy Act, NEPA, that requires
agencies to prepare an environmental impact statement. They
have to do it for every major Federal action. Well, at the NRC
major Federal actions can include the issuance of licenses,
license amendments. NEPA requires an agency to provide notice
and to take public comments as it prepares an environmental
impact statement.
But in contrast to many Federal agencies, the NRC has
voluntarily decided to take steps beyond those required by
NEPA. Specifically, the NRC allows parties to challenge the
NRC's environmental impact statement at its evidentiary hearing
on security and safety measures. So, recently what we have seen
are anti-nuclear activists. They have argued that if new
information is presented at the hearing, then the NRC can't
supplement its environmental impact statement.
Instead, these activists are arguing that the NRC has to go
back and rewrite the entire environmental impact statement
before issuing a license or license amendment. So, if the NRC
has already issued a license, these activists argue that the
NRC has to then vacate and suspend a license that has already
been issued.
A bipartisan majority of the NRC Commissioners has
repeatedly rejected this argument by the extremists, but you
are the only Commissioner who agrees with these anti-nuclear
activists, the only one. So, the issue is now before a Federal
appeals court. So, if these activists succeed, it is going to
add significant delays, I think, to any NRC licensing
processes. This is going to make nuclear energy much more
expensive to produce, and in some ways could potentially
jeopardize safety.
So, is it still your position--I know how you voted, but is
it still your position that if new information is presented at
NRC's evidentiary hearings, that the staff must rewrite the
environmental impact statement before the NRC issues a license
or license amendment? And if the NRC has already issued a
license or license amendment, they must then vacate or suspend
the license or the license amendment?
Mr. Baran. Well, my concern is a little bit more specific
than that. In the cases I think you are citing, the issue there
was that the NRC staff, as you mentioned, made a licensing
decision on the basis of an environmental review that our
administrative law judges, the agency's administrative law
judges later found to be inadequate. So that is the key factor
there.
My concern is that at the point we make a decision, when
the agency issues a license, at that point we should do so on
the basis of an adequate NEPA review. In my view, in the cases
you mentioned, that did not happen. And as you mentioned, this
question is now pending before the D.C. Circuit Court of
Appeals, which will hold arguments on it next week.
Senator Barrasso. Thank you.
Senator Carper.
Senator Carper. Thanks, Mr. Chairman.
I think this is a question for Bill Wehrum. Virtually every
major clean air regulation that you helped to craft during the
Bush administration has been thrown out, I am told, thrown out
by Federal courts. Twenty-seven times the courts found that you
failed to protect public health as directed by the law. All of
the failed regulations you worked on created greater
uncertainty for businesses and left the life of those that are
most vulnerable at risk.
When you left the EPA in 2007, I am sure you reflected on
your time at the Agency in different ways, but one of the ways,
the only one we are aware of, is really captured in the
following quote from you, and I am going to read what the
poster over my head says. It is put in juxtaposition to what
Mr. Leopold said earlier in his testimony, and I think it was
heartfelt, in his opening statement about a commitment, sort of
a moral commitment to clean air, water, and so forth.
I was out of the room when Mr. Ross invoked the verse for
the beauty of the earth to talk about his commitment, and the
juxtaposition of those two statements and what I am about to
quote here from you just could not be stronger. Your quote is
saying ``I am a much better lawyer now than when I first joined
the Agency. To really get to know how the Agency works and how
it ticks, I think that is very valuable. I have expanded my
capabilities, which will hopefully allow me to be effective in
generating business and clients.''
Since then you have represented industry 31 times in
lawsuits that I am aware of, against EPA, arguing for weaker
air toxic mercury and climate protections. Would you just take
a minute and tell us why the American people should believe
that you will be impartial in making decisions when it comes to
protecting public health over the interest of the industries
that you spent many years representing?
Mr. Wehrum. I would love to, Senator. Thank you. First of
all, with regard to the cases you cited and also the quote that
you provided, both of them are tip of the iceberg situations.
With regard to the cases, what gets litigated in the D.C.
circuit is a very, very small fraction of what gets done in the
Office of Air and Radiation, so I think it is a
misrepresentation of my experience at EPA previously to say
that that somehow is an indicator that I am not committed to
faithfully implementing the law and committed to protecting
human health and the environment, so I think that is not
representative.
Senator Carper. Let me just follow up, if I could. I am
particularly concerned about your legal efforts against the
Obama administration's mercury and air toxic rule for power
plants. You argued in court that EPA has not proven that it is
appropriate to regulate mercury and air toxic power plant
emissions, despite the fact that most utilities are meeting the
rule's deadlines and health benefits are being realized faster
than predicted.
Administrator Pruitt is reviewing the rule, and you made it
clear you in our private meeting that you will not recuse
yourself from working on this issue. If the mercury and air
toxic rule is revoked, how is that good for public health? And
if the rule is revoked, will power plants stop running
pollution control technology they have already bought, paid
for, and installed, and how is that good for ratepayers?
Mr. Wehrum. Well, Senator, I think a point you are trying
to make is rule of law is important, and there is no better
example than this particular standard. It went all the way up
to the U.S. Supreme Court. The U.S. Supreme Court said that EPA
made a fundamental flaw in deciding whether to implement this
regulation because it did not consider cost in making the
threshold judgment as to whether power plants should be
regulated as part of the Clean Air Act.
That question is still an open question before U.S. EPA.
The Obama administration implemented a rule to address that
court finding, but the litigation is still pending, and I
believe has now been stayed, and that is an issue that we will
have to take up if I am confirmed.
Senator Carper. My time is almost expired, so I will ask
you to hold it there. Thank you for that response.
Mr. Chairman, I ask unanimous consent to submit four cases
where Mr. Wehrum represented oil interests against biofuel,
biodiesel, and renewable fuel standard regulations. These cases
show or suggest that Mr. Wehrum should be very familiar with
renewable fuel standard and flexibility given to the
Administrator to implement the RFS. I make that unanimous
consent request.
Senator Barrasso. Without objection.
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Senator Barrasso. Thank you, Senator Carper.
Senator Carper. And if I could, just one more unanimous
consent. I would like to ask unanimous consent to submit for
the record two L.A. Times articles from 2004. These articles
report two instances where Mr. Wehrum ignored the EPA career
staff and inserted industry language from his former law firm,
Latham & Watkins, into two different rules dealing with
formaldehyde and mercury emissions. Both professions ended up
failing in court. For the mercury rule, the L.A. Times reported
that, ``Several complete paragraphs were lifted from three
memos provided by Latham & Watkins, a national law firm whose
clients include large coal-fired utility plants.''
I ask unanimous consent.
Senator Barrasso. Without objection.
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Senator Barrasso. And I also have a statement for unanimous
consent. We have multiple State officials who are supporting
Mr. Wehrum's nomination. The Association of Air Pollution
Control Agencies is a consensus driven organization, brings
together officials from 20 States, a host of local agencies.
Clint Woods, who is the Executive Director of the
organization, stated that ``Through his comprehensive knowledge
of the law and experience in the Federal Government, Bill
possesses the background to manage challenging Clean Air Act
issues at U.S. EPA and to help continue the tremendous air
quality progress that has been achieved in our country over the
last several decades.''
Without objection, that will be submitted as well.
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Senator Barrasso. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
During the first round of questions I was critical of the
previous administration, Mr. Wehrum, for not following the law.
It was ruled that they were not accurately following the law in
terms of coming out with the costs and evaluations of various
emissions standards, and you said that you would comply with
the law if that happens.
But there is another condition that they have where they
had not been complying with the law, and that is the Clean Air
Act also calls for the Clean Air Scientific Advisory Committee
to evaluate implementation issues related to air quality
standards. Yet, that wasn't done.
Should it have been done, and will it be done, if you are
confirmed?
Mr. Wehrum. Senator, CASAC has a role specified by statute
and advising the Administrator on setting national ambient air
quality standards, and there has been a suggestion that CASAC
has not been implementing its complete, full set of
obligations, focusing only on certain aspects of the job and
not others, so I believe it is important for CASAC to fulfill
its complete role, sir.
Senator Inhofe. OK.
Mr. Dourson, I have 20 kids and grandkids, and you have a
bunch out there, too, and despite what the critics think, we
want them to grow up in a healthy environment. I care about the
world we are going to leave behind for them, and you, too, are
a father and grandfather, and I imagine that your family is a
big driver for you in your work over the last 38 years. What
led you to pursue this field, and why do you want this job?
Mr. Dourson. Thank you very much for the question. No, what
led me to this field was some time in West Africa with a
medical doctor, and I got enamored with the idea of preventive
medicine. So after school, graduate school, I went into
toxicology. It was funded by the U.S. Government on a stipend.
I learned that this particular area was preventive medicine,
and so I became enamored with that.
To fulfill my duties of the stipend, I started working with
U.S. EPA immediately thereafter, and I have grown to admire the
people of the U.S. EPA, and of course, I have had the good time
to work with a non-profit organization since then. So, in each
of these cases it is the lifelong career objective of
protecting the American people and their sensitive individuals
and the environment from chemical pollution.
Senator Inhofe. Out of curiosity, where in West Africa was
it?
Mr. Dourson. Liberia, West Africa, before the wars. It was
a very peaceful country.
Senator Inhofe. Yes, I know that. When we met in the office
last month, you said of your non-profit that only a third of
the research was at the request of industry. What was the
majority of the organization's work focused on?
Mr. Dourson. Two-thirds of our work is government
organizations, over 70 different government organizations. And
also a big part of the work is collaborative opportunities. So
we worked with government and industry often in collaborative
modes. Many of the chemicals that came up before where all
these numbers were up or down, or something like that, were
collaborative ventures, including government and other groups.
Senator Inhofe. Were you involved in pro bono type work? It
is my understanding that some 10 percent to 20 percent of
TERA's work was also pro bono. Can you provide us with an
example of pro bono work?
Mr. Dourson. Yes. Thank you, Senator. So, when we started
TERA, we did this free State help, what we call it SHELP, State
Hazard Evaluation Lending Program, and we gave free assistance
to any State. We have worked with many States in that capacity.
Another example of scientific societies, the one that is
most fulfilling to me is we are a public organization; we have
members of the public come in. We had a young mother come in to
my office 1 day. She was distraught. No one had been listening
to her; she had nowhere to turn. She went to the Web, found our
site. As she relayed her story, her family had been poisoned,
and it became obvious to me that the poisoning was likely to be
hydrogen sulfite, which is a very serious poison. Her four
children were affected; her horses were affected; the dogs were
dead. I mean, it was a really pretty severe case.
So, after a little bit additional study, we were able to
get her the medical attention and then the legal support that
she needed to carry on, and that made the local news several
times. That was very gratifying, although, honestly, dealing
with the public one on one like that is not always the most
direct part of our pro bono.
Senator Inhofe. Well, good for you.
Mr. Leopold, you have worked on several large scale
environmental issues in your time in private practice and on
behalf of the State of Florida. Could you give us a quick
overview of these and your work on these issues?
Mr. Leopold. Thank you, Senator. Yes, I have been fortunate
to work on some of the biggest environmental cases going. I am
very proud that I worked on the BP oil spill enforcement case,
spent a couple years helping the Justice Department hold BP
accountable for that spill and resulted in the biggest Clean
Water Act penalty in U.S. history.
Also, the Everglades litigation. I helped support the State
of Florida in advancing restoration on the Everglades.
So those are two of the big ones.
Senator Inhofe. Good.
Thank you, Mr. Chairman.
Senator Barrasso. Senator Merkley.
Senator Merkley. Thank you, Mr. Chairman.
Mr. Wehrum, do you believe with high confidence that human
activity is a major driver of climate change?
Mr. Wehrum. Senator, I am sorry, your question, I didn't
hear----
Senator Merkley. Do you believe with high confidence that
human activity is a major driver of climate change?
Mr. Wehrum. I think human activity contributes to climate
change, Senator, yes.
Senator Merkley. When you say yes, do you believe it the
major driver of climate change?
Mr. Wehrum. I believe that is an open question, Senator.
Senator Merkley. That is certainly the type of answer that
we hear continuously. That is the coached answer that the Koch
brothers are asking people to sew this uncertainty, so we have
seen that in answer after answer that comes before this
Committee, such as statements from Mr. Pruitt, statements from
Mr. Tillerson, statements from Mr. Perry, all citing this, oh,
we are just not sure if it is significant or not. Maybe it is
contributing, but we are just not sure if it is significant.
So let's take a look at the NASA charts. I am going to put
up a chart that shows NASA's evaluation of the contribution of
solar energy. We see the yellow line on this chart, the flat
line that goes across. Virtually no variation over the course
of 125 years. And we see the enormous variation in the climate.
Do you see any correlation, significant correlation between the
yellow line and the black line?
Mr. Wehrum. Senator, I have no idea what that depicts.
Senator Merkley. Well, I just explained it to you, so let's
try it again. I think you are supposed to have a background
capable of understanding this sort of thing. Solar energy,
temperature of the planet. NASA statistics. Does there appear
to be any correlation between those two lines?
Mr. Wehrum. Senator, I will respond to you as I did to
questions on the renewable fuel standard. These are very
complex issues, and they are very important issues, and I
understand that they are important to you, so----
Senator Merkley. OK, thank you. We will go on to the next
question, because anyone slightly familiar with statistics
would say a flat line and a rising line do not show
correlation.
Another argument is that volcanic activity, the Earth's
orbit, as well as solar activity contribute. That is what NASA
has compiled collectively under the bottom chart. We have the
natural factors, those three that I just summarized, and then
we have the rising temperature in the black line. Does there
appear to be any correlation in this case?
Mr. Wehrum. Again, Senator, I will say I am not familiar
with those data; I have no idea what it shows.
Senator Merkley. OK. Well, if you can't read a chart, are
you qualified to have this role?
Mr. Wehrum. Senator, what is important is to understand the
data underlying the depiction, and I have had no opportunity to
see those data or understand how they have been depicted.
Senator Merkley. You have been working in air pollution for
these decades, and you have no acquaintance with data related
to the warming of the planet or the factors that contribute to
that?
Mr. Wehrum. Senator, all I said is I have no idea what data
contributed----
Senator Merkley. OK. Well, let's turn to the third chart,
then. NASA has compiled a third chart. This one, again, shows
the rising temperature in the same color, in black, and it
shows the rising greenhouse gas emissions. Can you, without
great familiarity, acknowledge that these lines generally track
each other?
Mr. Wehrum. Once again, Senator, I am not familiar with
those data; I have no idea what it depicts.
Senator Merkley. You can see the lines. Do the lines track
each other?
Mr. Wehrum. What is important, Senator, is to know how the
data are depicted. Understanding the underlying data and
understanding the----
Senator Merkley. Yes, it is, but I am just asking you a
question. Can you see those two lines and do they generally
track each other?
Mr. Wehrum. Well, again----
Senator Merkley. OK, thank you.
What we have seen is this Koch Brother inspired
determination not to acknowledge even the most fundamental
facts, and continuous excuses that perhaps the temperature of
the climate is going up because of solar activity. Oh, no. No,
wait, maybe it is volcanic activity. But when NASA presents the
information that shows there is no correlation from those
factors, and extensive correlation from carbon dioxide and
other global warming gases, individuals like you simply refuse
to acknowledge it.
Why should the American people put into an office of
significant influence someone who refuses to look at the facts
directly that are so important to the health of this planet?
Mr. Wehrum. Senator, as I said a second ago, these are
complex issues and very important issues, and I commit myself,
if confirmed, to speak----
Senator Merkley. Do you think on such a serious--so, in
Oregon we have lost a billion oysters due to the increasing
acidity of the ocean that is caused by carbon dioxide becoming
carbonic acid. Are you familiar with this problem? Yes or no,
are you familiar with the increased acidity?
Mr. Wehrum. I am not familiar with the oyster industry in
Oregon, no, sir.
Senator Merkley. Are you familiar with the increasing
acidity of the ocean?
Mr. Wehrum. I understand there is an allegation that----
Senator Merkley. Oh, my goodness. You have to be kidding
me. Really?
Mr. Wehrum. I understand----
Senator Merkley. You are in this field and you have never
read anything about the increasing acidity of the ocean? Well,
how about the fact that we have a fire season that is 2 months
longer than it was 4 years ago? Are you familiar with the
growing length of the fire season?
Mr. Wehrum. I have not----
Senator Merkley. Are you familiar with the extending range
of pine beetles that are having a devastating impact on our
forests and creating an area that you can fly over called the
red zone?
Mr. Wehrum. As I said, Senator----
Senator Merkley. Are you familiar with the snow pack in the
Cascades? All of these things, no one can look at what is
happening on the planet and see that there is nothing happening
unless you are deliberately determined to ignore that
information, and that makes you really, quite frankly,
unacceptable to serve in this capacity.
Thank you, Mr. Chairman.
Senator Barrasso. Senator Carper.
Senator Carper. Mr. Chairman, I have a unanimous consent
request to enter an op-ed written by Senator Whitehouse that is
in my hands, and I would like to ask unanimous consent to be
inserted into the record.
Senator Barrasso. Without objection.
Senator Carper. Thank you.
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Senator Carper. I would also like to ask unanimous consent
to insert a number of other letters and articles about today's
nominees into the record, please.
Senator Barrasso. Without objection.
Senator Carper. Thank you.
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Senator Carper. Some of you have been in this room before,
some of you several times. I joined this Committee almost 17
years ago, and I have sat through a lot of hearings. Senator
Inhofe has sat through more. Our Chairman has sat through a
bunch of them, too.
This has been an extraordinary hearing. Extraordinary
hearing. And these decisions that we are going to make, that
you would make, if confirmed, are really life and death
decisions. No question. And you have witnessed, in some cases,
an outpouring of emotion, almost fear about what your service,
not all of you, but some of you, what your service might lead
to.
And I just want to say, Dr. Dourson, I try to treat other
people the way I want to be treated. I met with you, and I
appreciate the time you spent with me, and I care about
surrounding myself with people who have good mind, also a good
heart, and there is no question you have a good mind. You are
well educated. You are a scientist. You are smart.
I think what we are hearing from the Senators on our side,
there is a question about your heart. And I don't mind people
saying to me that they think I am dumb. I don't like it, but
what really hurts me is when they question my heart. And there
are really serious questions about your heart.
A woman named Maya Angelou, now deceased, a great poetess.
She used to say these words. She used to say, people won't
remember what you said. People may not remember what you do or
did. They will always remember how you made them feel. They
will always remember how you made them feel.
And honestly, some of the people in this audience here that
have lived through exposure of materials that we are talking
about, they are afraid. They are afraid. And they represent a
lot of other people as well. And I am afraid what you said here
today does not diminish those concerns or those fears. I just
have to say that to you.
Thanks very much.
Mr. Dourson. Thank you, Senator.
Senator Barrasso. Thank you, Senator Carper.
Thanks to all of the members.
I am going to submit for the record a final letter from
Sean Alteri, who is the Director of Kentucky Division of Air
Quality, stating that ``Considering his education,'' regarding
Mr. Wehrum, ``his education and experience as a chemical
engineer and environmental attorney, Mr. Wehrum will be well
positioned to provide clear, concise director to address the
many diverse, complex air quality issues.'' He goes on to say,
``As a study of the Clean Air Act, Mr. Wehrum's knowledge and
experience will greatly benefit EPA, State, and local air
pollution control agencies.''
Without objection, that will be submitted.
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Senator Barrasso. Finally, with regard to the Nuclear
Regulatory Commission and the issues of NEPA and licensing, I
find the position that the nominee today has taken deeply
troubling and outside the mainstream. I think it is just tailor
made to those looking to delay the NRC's licensing process
indefinitely and to stop nuclear energy production from going
forward in the United States, and I believe we need all the
sources of energy.
Finally, Mr. Ranking Member, if no one else has questions
today, members are going to be able to submit written follow up
questions for the record. We will do it by the close of
business on Friday. The nominees will then respond to those
questions by the close of business Thursday, October 12th.
So, I want to thank each of the nominees, commend you, and
congratulate you on the nominations, and the hearing is
adjourned.
[Whereupon, at 12:58 a.m. the Committee was adjourned.]
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