Good Morning. Welcome to all of the witnesses. I am particularly pleased that we are joined today by Steven Kouplen, the president of the Oklahoma Farm Bureau. Mr. Kouplen has a commercial Hereford cow-calf operation and also grows wheat, milo and alfalfa. He represents the 140,000 members of the Oklahoma Farm Bureau.
Today’s hearing will focus on several pressing Clean Water Act issues, some of which have been the subject of recent EPA’s actions. Of particular importance to my state of Oklahoma is the future of the Total Maximum Daily Load (TMDL) program, as well as how oil and gas sites are treated under the storm water rule.
This Administration was absolutely correct in withdrawing the TMDL proposal of the Clinton EPA. Many stakeholders, including the states, were concerned about a number of its provisions, including the requirement that an implementation plan be submitted along with the TMDL.
The TMDL rule has the potential to severely limit local and individual land use decisions. A TMDL is a number, the maximum amount of a particular pollutant that a water body can sustain and meet water quality standards. That number is then divided among contributors along the water body. The rule can proceed in one of two ways – give EPA authority to approve just the TMDL number with states deciding how to distribute it or give EPA authority to approve how the state divides that number among the contributors. Why does this matter? Imagine a farmer who has been assigned a certain pollutant reduction to achieve. If he wants to change his crop, sell his land or build a barn, all those actions may have a water quality impact and may cause him to exceed his pollutant allocation. The decision on what to do can be made between him, the state and the others on the water body but if EPA has authority over how the TMDL obligation is divided, that decision will be made by EPA.
My message on TMDLs is this: we need a new rule but it must be a rule that outright prohibits any EPA role in local land use decisions. Give EPA authority to approve just the TMDL number itself, not how states decide to distribute it.
Assistant Administrator Mehan has been a big proponent of trading. EPA issued guidance earlier this year to help states create trading programs. Trading allows one source to meets its obligations under the Clean Water Act by using pollution reductions created by another source that has lower costs and thus can reduce pollution beyond its obligations under the Act. A key objective of the trading guidance and any trading program is to meet water quality standards and to ensure at the end of the day, the water is cleaner and safer. States have successfully developed programs that meet this objective but also reduce costs. I believe trading will help reduce costs without affecting water quality and therefore we should do all we can to promote it. We need to give the regulated more tools not just more requirements.
Today we are also going to hear about two issues that are very important to the small oil and gas producers in my state of Oklahoma. The Clean Water Act exempts uncontaminated runoff from oil and gas sites from the storm water program. Contaminated runoff is still covered – the Act is silent on contaminated runoff.
EPA, on a technicality, has included all runoff from oil and gas sites in the construction side of its storm water program because the term “construction” is not in Section 402(L). EPA made two mistakes – the first was failing to recognize that construction is not a separate part of developing an oil and gas sites and was never intended to be covered by the program. The second mistake was in underestimating the number of oil and gas sites that would be impacted by the rule. I am pleased EPA realized the latter of their two errors and correctly proposed a two-year delay in part because their cost benefit analysis did not include the nearly 30,000 oil and gas sites impacted by the rule.
It is also important that we take a very close look at the Spill Prevention Control and Containment program. Everyone must understand that SPCC plans are required of any facility that houses large amounts of oil – this includes the nation’s farms. The new rule increases the number of facilities that need a plan by reducing the amount of oil that can be housed on site before the requirement kicks in. EPA granted an 18-month extension for facilities to comply because facilities were struggling to meet the new requirements, including how to address secondary containment at loading operations. Stakeholders are also particularly concerned that there will not be enough Professional Engineers to certify the plans, or whether they even will certify them. I recognize that Mr. Mehan does not oversee this program and will submit questions to the agency requesting an adequate explanation of why these changes were needed.
Another issue will be raised today regarding an unintended consequence of Section 309 of the Clean Water Act. Unlike other environmental statutes – including the Clean Air Act -- to be convicted of a negligent violation, a person does not have to be guilty of an intentional or a reckless act. The person – entirely by accident, without any forethought and without any malice or intent – may have caused a pollutant to spill into nearby waters and as a result could be sent to jail, convicted of a federal offense. Let me be perfectly clear that I am not suggesting we in any way weaken EPA’s ability to pursue those who intentionally or recklessly cause harm to our environment or endanger others. I hope to work with my colleagues to find a solution that protects the waters but also the rights of our citizens in the case of an accident. I would like to ask unanimous consent to submit a colloquy that Senators Breaux, Domenici and I had during the floor debate on the energy bill.
These are all very important issues. I look forward to the testimony.
Colloquy between Senators Domenici, Inhofe and Breaux
SENATOR INHOFE. I would like to engage the gentlemen in a colloquy and draw the Senate's attention to several statutes which have been, through litigation, expanded beyond what we believe was the intent of Congress.
SENATOR DOMENICI. Is the gentleman referring to the criminal negligence provision of the Clean Water Act and the strict criminal liability provision of the Migratory Bird Act and the Refuse Act which can be triggered by a simple accident?
SENATOR INHOFE,. Precisely. Now, I want to be clear that I do not want to suggest for a minute that we should make it easier for polluters to damage the environment or put the public at risk.
SENATOR DOMENICI. But the situation you are talking about refers to clear accidents involving ordinary people, correct?
SENATOR INHOFE. Yes. Recent court decisions have made it clear that employees, at any level, who are involved in environmental accidents, can be prosecuted criminally, and potentially imprisoned. These are non-deliberate environmental accidents that do not threaten or harm others.
SENATOR BREAUX Mr. President, I am also concerned about criminal liability as it applies to oil spills. In fact, during the 106th Congress, I introduced legislation to address a long-standing problem which adversely affects the safe and reliable maritime transport of oil products. The legislation was aimed at eliminating the application and use of strict criminal liability statutes, statutes that do not require a showing of criminal intent or even the slightest degree of negligence, for maritime transportation-related oil spill incidents.
As stated in the Coast Guard's environmental enforcement directive of 1997, a company, its officers, employees, and mariners, in the event of an oil spill "could be convicted and sentenced to a criminal fine even where [they] took all reasonable precautions to avoid the discharge". Accordingly, responsible operators in my home state of Louisiana and elsewhere in the United States who transport oil are unavoidably exposed to potentially immeasurable criminal fines and, in the worst case scenario,jail time. Not only is this situation unfairly targeting an industry that plays an extremely important role in our national economy, but it also works contrary to the public welfare.
To preserve the environment, safeguard the public welfare, and promote the safe transportation of oil, we need to eliminate inappropriate criminal liability that otherwise undermines spill prevention and response activities. I pledge my support to work with my colleagues to address these environmental liability issues.
MR INHOFE, The American Waterways Operators have devoted a great deal of time to training mariners and vessel operators. Clearly, the Coast Guard goes to great lengths to ensure its officers and staff are well trained. However, unfortunately, accidents - true accidents - happen.
MR. DOMENICI,. My colleagues are clearly describing a legal minefield where employees involved in an accident become less likely to cooperate with accident investigations because they are being advised by counsel not to potentially incriminate themselves.
SENATOR INHOFE. That is absolutely correct
SENATOR DOMENICI. And as Chairman of the Environment and Public Works Committee, is it the Senator from Oklahoma's position that this leads to less environmental safety instead of more?
SENATOR INHOFE. Indeed. I also wish to draw the gentleman's attention to the Clean Air Act, which has a different, and I suggest, more appropriate provision of negligent endangerment.
SENATOR DOMENICI. I am familiar with the provision - it requires risk of physical harm to the public for an accident to trigger criminal prosecution.
SENATOR INHFOE. Yes. That is the type of activity for which we should reserve criminal prosecution. I also remind my colleague that the Clean Water Act clearly allows prosecution for deceitful or purposeful environmental damage, or for fraudulent efforts to conceal such damage - a provision we would not change.
SENATOR DOMENICI. I agree with the gentlemen's assessment, share their concern, and look forward to working with them to address this important issue