[Senate Hearing 106-40]
[From the U.S. Government Publishing Office]
S. Hrg. 106-40
NOMINATIONS OF GARY GUZY AND ANNE JEANNETTE UDALL
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
MARCH 4, 1999
__________
Printed for the use of the Committee on Environment and Public Works
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U.S. GOVERNMENT PRINTING OFFICE
55-953 cc WASHINGTON : 1999
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington DC
20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
ROBERT F. BENNETT, Utah RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
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(ii)
C O N T E N T S
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Page
MARCH 4, 1999
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 6
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 1
Inhofe, Hon. James, U.S. Senator from the State of Oklahoma...... 2
Article, EPA's Wasteful Grants............................... 4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 5
WITNESSES
Guzy, Gary S., nominated by the President to be General Counsel,
Environmental Protection Agency................................ 7
Committee questionnaire...................................... 22
Prepared statement........................................... 20
Responses to additional questions from Senator Inhofe........29-118
Udall, Anne, nominated by the President to be reappointed as a
member of the Board of Trustees of the Morris K. Udall
Scholarship and Excellence in National Environmental Policy
Foundation..................................................... 15
Committee questionnaire...................................... 120
Prepared statement........................................... 118
Udall, Hon. Mark, U.S. Representative from the State of Colorado. 7
ADDITIONAL MATERIAL
Letter:
Office of Hon. Jim Kolbe, U.S. House of Representatives, to
Hon. John Chafee........................................... 136
(iii)
NOMINATIONS OF GARY GUZY AND ANNE JEANNETTE UDALL
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THURSDAY, MARCH 4, 1999
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:01 a.m., in
room 406, Senate Dirksen Building, Hon. John H. Chafee
(chairman of the committee) presiding.
Present: Senators Chafee, Inhofe, Baucus, and Lautenberg.
OPENING STATEMENT OF HON. JOHN H. CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. All right, let's start. It is my
understanding that Senator McCain will be here later to
introduce Ms. Udall. We will proceed, and when Senator McCain
arrives we will fit him into the program.
My plan is that I would make a brief opening statement--
Senator Lautenberg, do you have an opening statement today?
Senator Lautenberg. Mr. Guzy is from New Jersey.
Senator Chafee. I knew you were going to introduce him.
The purpose of today's hearing is to consider two
nominations. The first nomination is that of Mr. Gary Guzy, to
be appointed as General Counsel of EPA.
The second nomination is of Dr. Anne Udall, to be
reappointed as a member of the Board of Trustees of the Morris
K. Udall Scholarship and Excellence in National Environmental
Policy Foundation.
We welcome everybody here today. I understand Mr. Guzy's
wife is present, as are his daughter and his son, so we welcome
you and are delighted that you are here this morning.
Senator Lautenberg, a Member of our committee, will
introduce Mr. Guzy in a few minutes.
We also welcome Senator McCain, as well as Dr. Udall's
brother, Representative Mark Udall--is he here yet? Not yet?
All right. They will be along shortly.
The Office of General Counsel at EPA provides legal
services with respect to agency programs and activities, and
provides legal opinions, legal counsel, and litigation support.
It's a big job. Mr. Guzy was appointed Acting General Counsel
by EPA Administrator Carol Browner on November 17, last year.
Mr. Guzy has also served as Counselor to EPA and as EPA's
Deputy General Counsel.
Before joining EPA, Mr. Guzy served as a senior attorney
with the Department of Justice, Environment and Natural
Resources Division. He is a graduate of Cornell Law School,
where he also did his undergraduate work.
Dr. Anne Udall is currently assistant superintendent for
curriculum and instruction for the Charlotte-Mecklenberg School
District in Charlotte, NC. Dr. Udall has served as coordinator
of gifted programs in the school district, and as a Critical
Thinking Resource Specialist in the Staff Development
Department of the Tucson Unified School District in Tucson, AZ.
She began her career in education as a teacher with gifted
children with learning disabilities. She received her Bachelor
of Arts in secondary education and an M.A. in special education
from the University of New Mexico, and a Ph.D. from the
University of Arizona in 1987.
She was previously confirmed by the Senate to the board of
trustees of the Morris K. Udall Foundation on October 6, 1994.
She is the daughter--and Representative Udall is the son--of
the late Morris K. Udall, whom most of us knew. Some of us,
such as Senator Inhofe, knew him better than the rest of us,
because Senator Inhofe served in the House with Morris Udall.
Dr. Udall, I understand there is a memorial service for
your father later this afternoon, and I know that many here in
the Senate would like to pay their respects to this fine
gentleman. I am sure he would be very proud of both Mark and
Anne if he could be here with us today.
The Morris K. Udall Foundation was established by Congress
in 1992 as a nonprofit organization, committed to educating a
new generation of Americans to preserve and protect their
national heritage by the recruitment and preparation of
individuals skilled in effective environmental public policy
conflict resolution. I am pleased to report that both nominees
have impressive backgrounds and are highly qualified for the
positions before them. These positions pose challenges that I
am confident both are prepared to face. I look forward to
hearing what they have to say about their backgrounds and what
they hope to accomplish.
Senator Lautenberg, do you have a statement here? If you
have an introduction--we'll put off the introduction until
Senator Inhofe makes an opening statement.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman.
First let me say that I have no problems with either of the
nominees and look forward to supporting both nominees.
Mr. Guzy, while I believe you are going to do a good job as
the General Counsel and I intend to support your nomination, I
am concerned about how the Agency has been handling some of
these consent decrees and some of these lawsuits. Just last
week in the Washington Times--you probably read the article--in
fact, I ask unanimous consent that at the conclusion of my
opening remarks, that this article from the Washington Times be
placed in the record.
Senator Chafee. Fine.
Senator Inhofe. They wrote a very disturbing article about
the EPA's wasteful grants. In fact, I would like to enter that
into the record. The article details how the Agency provides
millions in grants to organizations who turn around and
immediately sue and lobby the Agency. The appearance is that
Federal taxpayers are subsidizing these lobbying efforts and
lawsuits.
In addition, I am also concerned about how the Agency
enters into the so-called consent decrees, where the EPA
determines agency policies in what I consider to be ``back-door
negotiations.'' The appearance is that the Administration funds
lawsuits by environmental organizations who sue the Agency with
taxpayer funds; then the EPA turns around, enters into back-
door negotiations with these groups, producing consent
agreements that bind the Agency outside the normal notice.
So because of these concerns, Mr. Guzy--and it's not going
to take any time to do this--I intend to hold up moving your
nomination until we get a couple bits of information.
First, I would like a list covering the last 6 years, of
all grants to individuals or organizations that have also sued
the Agency. Please include the amount and purpose of the grant
and the relevant dates for grants and lawsuits.
Second, I would like a list of all parties to any consent
agreements that the EPA entered into over the last 6 years. And
please----
Senator Chafee. Senator, I just want to make sure that Mr.
Guzy is able to get this down.
Senator Inhofe. Well, I'm going to give him a copy of this.
Senator Chafee. OK.
Senator Inhofe [continuing]. And please include a
description of what was agreed to in the consent agreements,
and which parties were present during the negotiations.
Maybe you can address a couple of these things in your
opening remarks, and I will stay here for those opening remarks
before I have to leave.
Thank you, Mr. Chairman.
[The prepared statement of Senator Inhofe and the
referenced article from the Washington Times follow:]
Statement of Hon. James M. Inhofe, U.S. Senator from the
State of Oklahoma
Thank you Mr. Chairman for calling this hearing today.
First, I would like to say that I have no problems with either of
the nominees. I would like to welcome Ms. Udall and congratulate her on
her renomination, I am sure her father would be proud of the work she
has accomplished on behalf of the Morris Udall Foundation.
Mr. Guzy, while I believe you will do a good job as the General
Counsel of the EPA and I intend to support your nomination, I am
concerned about how the Agency has handled lawsuits over the last 6
years, supporting those who sue the EPA.
Just last week in the Washington Times, a columnist wrote a very
disturbing article on the EPA's wasteful grants. In fact, I would like
to enter the article into the record. The article details how the
Agency provides millions in grants to organizations who turn around and
immediately sue and lobby the Agency. The appearance is that the
Federal taxpayers are subsidizing these lobbying efforts and lawsuits.
In addition, I am also concerned how the Agency enters into these
so-called ``consent agreements'' where the EPA determines Agency policy
in backdoor negotiations.
The appearance is that this Administration funds lawsuits by
environmental organizations who sue the Agency with taxpayers funds.
Then the EPA turns around and enters into backdoor negotiations with
these groups, producing consent agreements that bind the Agency outside
the normal notice and comment process.
Because of these concerns, and your role as the General Counsel for
the EPA, I am requesting that you provide the Committee the following
information, and I will withhold my support for moving your nomination
forward until we have received the information.
1. I would like a list, covering the last 6 years, of all grants to
individuals or organizations that have also sued the Agency. Please
include the amount and purpose of the grant, and the relevant dates for
the grants and lawsuits.
2. I would like a list of all parties to any ``consent agreements''
that the EPA entered into over the last 6 years. Please include a
description of what was agreed to in the consent agreements, and which
parties were present during the negotiations.
I want to thank you in advance for cooperating with this request
and I look forward to supporting your nomination once we have received
the information.
______
[From the Washington Times, Wednesday, February 24, 1999]
EPA's Wasteful Grants
[by Deroy Murdock]
The EPA gets by with a lot of help from its friends.
Since President Nixon gave birth to the Environmental Protection
Agency, its budget has skyrocketed from $384 million in fiscal 1970 to
$7.3 billion in fiscal 1998, outpacing inflation by 456 percent.
One secret behind EPA's ballistic budget trajectory is its support
of non-profit organizations. Citizens Against Government Waste (CAGW)
recently released a report titled ``Phony Philanthropy'' by David E.
Williams and Elizabeth L. Wright. They explore more than $236 million
in EPA grants given to 839 non-profit groups in 1995 and 1996. Like a
squad of taxpayer-funded cheerleaders, many of these outfits waved
their pom-poms and lobbied Congress for higher EPA spending.
EPA grants also squandered tax money on corporate welfare, silly
ethnic diversity schemes and projects best reserved to states and
localities. These highly politicized boondoggles clean up little
pollution and beg to be excised with a budgetary ax.
The EPA, for instance, gave $166,888 to the American Lung
Association. The ALA lobbied Congress for increased EPA funding,
including new money for lung research. Who would you guess that might
benefit?
The Consumer Federation of America received $380,275 from the EPA
to promote ``indoor air quality awareness.'' The CFA then asked
Congress to maintain funding of the EPA's indoor air quality
activities.
The National Rural Water Association received a healthy $14,436,634
from the EPA. It returned the favor by charging its lobbying expenses
to the EPA and the US. Department of Agriculture. It organized lobbying
by state associations and even incorporated a full-time, taxpayer-
funded EPA employee in its legislative efforts through the
Intergovernmental Personnel Act, a sort of borrow-a-bureaucrat program.
The National Senior Citizens Education and Resource Center may be
the EPA's most notorious grantee. This offshoot of the National Council
of Senior Citizens received a shocking 99.7 percent of its budget from
Federal grants in 1995-1996, including $6,074,800 from the EPA. From
1992-1996, it gave $460,043 in campaign contributions--all to
Democrats. The Federal Election Commission fined the group $12,000 for
campaign violations in 1996. Wearing T-shirts that read, ``SHAME,''
about 20 NCSC members were removed by the Capitol Police after they
disrupted a Sept. 23, 1995, House Ways & Means Committee hearing on
Medicare.
When the EPA isn't spending your money to ask Congress for more
money, it showers your money on industries with lots of money. It gave
$432,840 to the International Association of Lighting Management to
``test, validate and, if necessary, revise the decades old data
underlying Luminaire Dirt Depreciation (LDD) curves used in current
lighting system design.'' As anyone who has cleaned up for house guests
knows, dusty lampshades are a domestic nightmare. But couldn't General
Electric or the folks who sell Mr. Clean perform this vital research?
And the EPA's $1,397,718 grant to the Geothermal Heat Pump
Consortium to underwrite a ``National Earth Comfort Program'' sounds
lovely, but why not leave that to the home heating industry?
Sometimes it seems the EPA's left hand doesn't know what its far-
left hand is doing. What else could explain an $81,391 grant to the
Lawyer's Committee for Civil Rights? It is assisting two
``environmental justice'' lawsuits against the EPA. In short, the EPA
is using your money to help lawyers sue the EPA. The circle of life is
complete!
As if there were no 10th Amendment, the EPA occasionally resembles
a giant city hall. The San Francisco League of Urban Gardeners, aka
SLUG, received $35,515 from the EPA for ``urban greening, neighborhood
beautification and local food production.'' Next time SLUG members need
money, they should call San Francisco Mayor Willie Brown at 415-554-
4000.
Perhaps most troubling is the EPA's support for non-profits with
race-tinged agendas. It gave $11,000 to Boston's Environmental
Diversity Forum, for example. EDF's mission is to ``protect the
environment by advocating racial, cultural and economic diversity at
all organizational levels and in all policies and programs of the
environmental movement.'' One hundred thousand dollars in EPA funds
went to the Korean Youth and Community Center in Los Angeles for
``linguistically and culturally appropriate community education,
technical and small business assistance to find healthy alternatives to
perchloroethylene, a dry cleaning agent.'' The EPA should focus on
pollution and leave multiculturalism to the Rev. Jesse Jackson and its
other champions.
The GOP Congress should hold oversight hearings on these and scores
of other fishy EPA grants that CAGW has exposed. Then, with this
nonsense clearly on the record, it can begin to slash EPA's budget
accordingly.
Senator Chafee. OK, fine.
Now, if you would like to introduce Mr. Guzy, Senator
Lautenberg.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thanks, Mr. Chairman.
I am pleased to welcome Gary Guzy here because in Gary, we
have an example of those who are committed to government
service, where extensive opportunity on the outside would be
easily available. He is a talented fellow and as noted, Mr.
Chairman, the President sent his name up to be General Counsel
of the Environmental Protection Agency, and we are pleased and
lucky to have him. He is from New Jersey, as you might guess,
and he was New Jersey-born, as was his mother, in my home town
where I was born, in Paterson, NJ.
Gary had honors when he was in high school, which was an
indication of what was yet to come. But then he left our State
and attended college and law school in a beautiful part of New
York State--it doesn't compare to New Jersey--but he went to
Cornell, and he returned to a profession highly regarded in the
State of New Jersey, and that is environmental protection.
Gary Guzy clerked for an Appeals Court judge, worked in
private practice, and then came to Government with a position
in Department of Justice's Environment and Natural Resources
Division. At the Department of Justice, he specialized in
wetlands, water quality, federalism, regulatory takings, and
hazardous waste issues, and from there he came to the
Environmental Protection Agency as Deputy General Counsel,
where he helped manage the Agency's legal staff.
I must say that it is my view that they have done a
terrific job over there. We have gotten rid of a lot of the
litigious environmental suits, proceeded to negotiated
settlements, and that's why we now have in Superfund almost
some 600 sites that are cleaned up, with approximately 100 yet
to go. Progress has been notably improved there.
From 1995 to 1998 he served as Counselor to EPA
Administrator Carol Browner, where he worked on children's
environmental health and the restoration of the Everglades,
among other issues.
I hope, Mr. Chairman, that you and Senator Inhofe, who has
legitimate questions to ask, will take a few minutes to visit
with Mr. Guzy. He is an impressive fellow and I know that he is
going to do an excellent job as EPA's General Counsel, and I
recommend him to the committee with a full heart and head,
knowing that he is going to do a very good job there, and I'm
sure he'll be able to respond appropriately to Senator Inhofe's
inquiries.
I just hope that we will be able to move along with
dispatch.
Also if I might, Mr. Chairman, I would like to take one
moment to welcome Anne Udall, because she represents such a
distinguished family. What an appropriate place this is, this
hearing room, for Udall family members to gather, because your
father was so much an environmentalist and his reputation for
honesty and integrity is second to none. We are pleased to have
you with us today.
Thanks very much, Mr. Chairman.
Senator Chafee. Thank you.
Senator Baucus.
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
STATE OF MONTANA
Senator Baucus. Thank you, Mr. Chairman.
First of all, I am sure all of you have welcomed the
family?
Senator Chafee. We have, yes.
Senator Baucus. Good.
Mr. Guzy, I really do wish you the very best in this job.
It is not easy, but as you know, public service sometimes has
its rewards. Usually it has its rewards, but sometimes its
frustrations, and I just want you to know that I am very
impressed with how much the EPA has progressed over the years
on a practical and pragmatic basis in just trying to solve
problems. I know you will follow the same tradition, and I very
much urge you to do so.
I think Carol Browner has done a terrific job in leading
the Agency, and I just hope, again, that you can just help her
to keep her feet on the ground, and your head screwed on
straight, just keep your focus on what we're all supposed to be
doing here, listening to people so that we can do a good job in
serving them.
Again, there is no reason why I should think you would not
do that, and I wish you the very best.
Senator Chafee. Thank you.
Now I see that Representative Udall is here. You
undoubtedly have a busy schedule; if you would like to come up
and say a few words on behalf of your sister--and we hope they
are favorable words----
[Laughter.]
Senator Chafee. You go to it.
STATEMENT OF HON. MARK UDALL, U.S. REPRESENTATIVE FROM THE
STATE OF COLORADO
Mr. Udall. Thank you, Mr. Chairman, members of the
committee. It is a privilege to be here today with you. It is
even more of a privilege to introduce my sister, Anne Udall, to
you.
I have known her since an early age----
[Laughter.]
Mr. Udall [continuing]. And I am still here to commend her
to you.
I am sure that Anne is also concerned, on the other hand,
that my appearance might torpedo her nomination----
[Laughter.]
Mr. Udall [continuing]. So I hope, whether I hurt or help
her, that you will take a look at her record, and I think that
record speaks for itself.
We are very proud of the Udall Foundation and what it has
accomplished and what it can accomplish in the future. Anne, in
bringing her background as an educator to the Foundation,
certainly has been a real asset. As you know, the Foundation
has as one of its missions to help educate Native Americans in
environmental policy and health policy, and she certainly has
been able to bring some important understandings to that part
of the mission.
I think you also know that the Foundation has really been
more aggressive in its mission, including the environmental
mediation piece that has just been added, and I would thank the
Senate for its support of that undertaking as well.
So it gives me great pleasure to introduce my sister to
you, Anne Jeannette Udall, and commend her to you.
Thanks for letting me appear today. Thank you.
Senator Chafee. Fine.
Does anybody have any questions?
[No response.]
Senator Chafee. All right, fine. We know you have a busy
schedule, so if you want to go along, that would be fine.
Mr. Udall. I'm going to sit here for a few minutes, Mr.
Chairman, if that's all right.
Senator Chafee. All right, fine.
Now, Mr. Guzy, we welcome you again. One of the things that
impressed me tremendously is the number of lawyers that you
supervise in total. Is it 300? How many is it?
Mr. Guzy. It's around 250 lawyers, about 350 positions all
together, including our support staff.
Senator Chafee. All right. Why don't you go ahead with your
statement?
STATEMENT OF GARY GUZY, NOMINATED BY THE PRESIDENT TO BE
GENERAL COUNSEL, ENVIRONMENTAL PROTECTION AGENCY
Mr. Guzy. Thank you and good morning, Mr. Chairman, Senator
Baucus, Members of the committee. It is a great honor to be
here today, to have been nominated by the President and asked
by Administrator Browner to serve as General Counsel of the
Environmental Protection Agency.
I am also deeply grateful to Senator Lautenberg for his
very generous words, for the leadership that he has provided on
environmental issues, as well as for the service that he has
provided to the citizens of my home State.
I am delighted to be joined by my wife and children, by
EPA's Acting Principal Deputy General Counsel, Lisa Freidman,
who has been an employee of the Office of General Counsel of
EPA for 22 years, and by Bob Dreher, our Deputy General
Counsel.
I believe that now is an opportune time to be taking on the
challenges of serving as EPA's General Counsel. First, EPA
today is a fundamentally different organization. It is one that
is reconnected to communities, to the American people, and it
is helping to make a difference in the issues that people face
in their everyday lives. Whether it be a child who suffers from
asthma, or a family who lives near a river too polluted for
fishing or swimming, our Nation still has much to do to protect
the health of its citizens and its environment. When I think
back to my own early childhood, living in Newark, NJ, with a
mother--a single parent, a dedicated public school teacher--
from that I recognize that a government that is caring, that is
honest, that is open, can make a difference in the lives of
ordinary citizens. I look to my own two small children and
recognize the importance of the work we are embarked on
together to assure them a healthy future and the continued
enjoyment of our Nation's legendary natural bounty that has
been so important in my own life.
Second, I am very hopeful that we are again entering a
period of basic agreement on the tasks to be done to advance
public health and environmental protection. I know you've heard
the phrase about the pendulum swinging back and forth, and it
has been doing that for several years, but I really sense a
much more fundamental agreement today on the important work
that we all have to do together to continue the bipartisan
accomplishments of public health and environmental protection
of the last 30 years.
As our statutes in this area have matured, we have the
challenge of keeping their overall goals and framework in mind
as we apply them to new situations and in fresh ways, and these
developments will challenge us. This will demand balance, will
demand common sense, and will demand judgment. If confirmed, I
look forward to working in a close cooperative relationship
with this committee and its staff in meeting these challenges.
I have been privileged over the last several years to have
worked with Administrator Browner who, with her senior
leadership team, has demonstrated a commitment to the
protection of public health and the environment that is
accomplished through creative means that provide unprecedented
flexibility to communities and to industry. This approach has
continued to demonstrate that our economy and our environment
are inextricably linked, and that a strong economy and a
healthy environment are twin, compatible goals that must drive
all of our actions.
In the course of this work I have had the opportunity to
work with many members of this committee and their staffs on
many issues of shared interest. These include working to
protect children from the threat of environmental tobacco
smoke, to helping to ensure the future of the Everglades, and
these efforts have required careful, respectful coordination of
activities among the legislative, executive, and judicial
branches of our Government.
When I think of some of the major issues EPA will face over
the next several years, I am struck by how central ``sound
lawyering'' will continue to be to the success of these
efforts. Whether it be new efforts to apply more broadly the
lessons learned from reinvention, or our implementation of the
protections for children under the new Food Quality Protection
Act, whether it be meeting the challenge of the responsible
collection, use, and dissemination of information, or EPA's
work under the Clean Water Action Plan to address nonpoint
source pollution--all of these challenges will demand the best
from our Nation's premier environmental law firm.
I am delighted to be rejoining a group that is as talented,
creative, dedicated, and hard-working as the career staff at
EPA's Office of General Counsel. They have an expertise in
environmental law that is unmatched. I recognize that EPA's
currency with the Congress, with the courts, and with the
public is its credibility, and that much of this rests with the
objectivity, with the integrity of the work of the Agency's
Office of General Counsel.
I look forward, if confirmed, to continuing the great
traditions of that office and to the opportunity for continued
public service.
I also know from my career in the private practice of
environmental law, representing private industry and States,
and then from my work at the Department of Justice and at EPA
representing the Federal Government, that keeping an open mind,
being attentive to absolute fairness of process for all
affected parties, is also essential to the ultimate success of
our work.
When I clerked for Judge Elbert Tuttle, who had by then
served as a Federal Circuit Court judge for 30 years following
his already long and distinguished career in private practice
and the military, it so impressed me that he was absolutely,
vitally interested in my then-relatively uninformed views. And
this openness of thinking, this reaching out to hear everyone's
perspective, no matter how hard we've been at an issue, no
matter how long we've worked at it, how much we've been
immersed in it--that kind of reaching out is critical to
improving the quality of EPA's analysis and the quality of
EPA's decisions.
It is also critical that we maintain the highest of ethical
standards in our work. These are values that, if confirmed, I
will strive to take to my job every day and continue to build
in our staff.
I also recognize that the EPA's General Counsel has the
rare luxury of a vantage point that cuts across all of the
Agency's work, providing an important check-and-balance and a
means for integrating disparate agency activities.
That check-and-balance--if I may address some of the
concerns that Senator Inhofe raised--oftentimes, the Office of
General Counsel reviews and provides counsel to the activities
around the Agency, and I think one of the areas in which I am
proudest of the accomplishments over the last 6 years has been
the improvements in the management integrity that have occurred
at the Agency. There have been vast improvements in that area,
and the concerns that you have asked about--whether grant funds
are being improperly used to litigate against the Federal
Government, whether consent decrees are being used in a way
that is inappropriate--are all absolutely fair concerns that we
should work together to ensure that you are satisfied on them.
I know that we have, in fact, addressed a number of these
issues in the past. We have worked hard to ensure that grant
funds that the Agency provides are not used in any way, that
Federal taxpayer dollars are not used in any way, to support
litigation against the Federal Government. That would be
inappropriate, and we have a number of management checks built
into our system, designed to ensure that that is not, in fact,
done.
I believe we have provided that list of grants to
individuals on the House side, and we would obviously be happy
to provide it to you, as well.
The questions that you raise about the use of consent
decrees are also very important. They pose a number of very
difficult and challenging issues for the Agency. As one
example, under the Clean Water Act, we now face litigation,
brought primarily by environmental groups, in approximately 35
States around the country for the failure of those States and
the failure of EPA to carry out its obligations to perform, to
carry out total maximum daily load calculations. That provides
an enormous management challenge, and it is absolutely true
that negotiations through consent decrees, the avoidance of
litigation, provides an important management tool in order to
help prioritize the Agency's responsibilities and carry those
out.
In addition, it is very important that the public comment
provisions when we do have negotiations and enter into a
consent decree are absolutely abided by, that there be a fair
and full and open opportunity for public comment about the
obligations that the Agency does determine to take on.
Generally it is our preference to work through settlement
agreements rather than court-bound consent decrees, but there
are times when that becomes necessary as well, and we would be
pleased to work with you to gain a better understanding of your
concerns in that area.
I wish you could have joined me several weeks ago when I
went door to door at EPA's offices to meet the staff of our
Office of General Counsel. The excitement of our lawyers at
working for the public on the issues that EPA confronts every
day is palpable, it's invigorating, and it's a joy to see. But
it also creates a very deep responsibility to lead this group
wisely, as does the responsibility of ensuring that our
Nation's environmental laws are faithfully carried out. These
are public trusts that, if confirmed, I look forward to working
closely with you to ensure.
I would be very pleased to answer any questions that the
committee may have.
Senator Chafee. Thank you, Mr. Guzy.
Are you willing to appear at the request of any duly
constituted committee of the Congress as a witness?
Mr. Guzy. Yes, I am.
Senator Chafee. And do you know of any matters which you
may or may not have thus far disclosed which might place you in
any conflict of interest if you are confirmed in this position?
Mr. Guzy. No, I do not.
Senator Chafee. I think the questions that Senator Inhofe
asked were very valid questions, and I will be curious as to
the answer, likewise. If you can get those up as quickly as
possible, it will help us, because we do want to move along
with your confirmation and that of Ms. Udall.
Mr. Guzy. I appreciate that, Mr. Chairman. I would be
pleased to provide those to you, as well.
Senator Chafee. This is a very impressive job which you
have, as we pointed out earlier. Not only do you have lawyers
here, but you have lawyers scattered around the country.
Suppose EPA wants to pursue a clean water permit violator--
I'm giving you a hypothetical here. Now, there would be
lawyers, presumably, from the Office of Water at EPA's Office
of Enforcement, is that correct?
Mr. Guzy. Lawyers from both of those offices, that is
correct.
Senator Chafee. And your office, the Office of General
Counsel?
Mr. Guzy. That's correct.
Senator Chafee. How about from the Department of Justice?
Would there be lawyers there, too, from them?
Mr. Guzy. Oftentimes that is the case as well.
Senator Chafee. Now, how do you divide up the labor when
you get so many cooks in the broth, here?
Mr. Guzy. It is more an art than a science.
Senator Chafee. I'll bet.
Mr. Guzy. Our office often serves the function of trying to
mediate and work through the internal differences of opinion
that may exist. It's not surprising that oftentimes there are
different views. We bear primary responsibility at the Agency
for understanding and interpreting the statutes that Congress
has created.
Senator Chafee. Something that you can be helpful to us on
is how we might fine-tune some of these statutes that we have.
Now, sometimes it is not possible to do that in the Clean Water
Act, the Clean Air Act, or whatever it is. By getting into the
act, we open the door, and we may open the door to a lot of
trouble. However, it is nice to know what the people out on the
front lines would like.
So in the course of your work--this committee is here to
help you, not to be an obstacle--in the course of your work, if
you find that there should be fine-tuning in some respect of
these laws, of these environmental laws, come up and let us
know and we'll do what we can to fix them up. It may not be
possible, but at least we would know from our experience in
talking with you.
Now, let me ask you this, what are your top three
priorities? Give us your priorities.
Mr. Guzy. First and foremost, Mr. Chairman, is to act as a
careful steward of the environmental statutes that Congress has
created. My primary responsibility will be to ensure that the
Agency's actions are fully lawful, that they are true to both
the letter and the spirit of the environmental statutes, and
that they create sustainable constructs under those statutes as
we move into new areas that may not have been fully anticipated
when they were passed. In many instances, these laws have been
around for 25 or 30 years, and they have been enormously
successful laws. There are a new set of challenges that really
need to be addressed under those laws.
Second, I would like to be able to foster new thinking on
the Agency's behalf among the staff of the Office of General
Counsel on alternative, nonregulatory methods for achieving our
goals. Oftentimes we proceed down a course that almost seems
pre-programmed to meet the responsibilities of the statutes.
Things like enhanced partnerships with industry, communities,
our fellow regulators, use of additional tools such as the
appropriate use of information--I think that they often provide
enormous opportunities for achieving the goals of the
environmental and public health statutes and are ones that
really merit very, very careful exploration.
And then last, I would very much like to employ the skills
that I see that I have as a problem-solver and as a finder of
common ground, to continue to develop agreed-upon areas of
environmental and public health protection. It strikes me that
nearly 30 years ago Congress created a very long-lasting
structure for the future of environmental and public health
protection, and some continuation of the discussion of what
should be the framework for the next 30 years, in a nonpartisan
and constructive manner, would be an enormously valuable
contribution.
Senator Chafee. Well, thank you very much.
I just want to say, before calling on Senator Baucus, that
there tends to be a sense of gloom sometimes about the
environment. We see cases have been lost or activities taken,
but if you just pick up today's New York Times, on the West
Coast and the East Coast, you see two very, very exciting
articles. The first one deals with the saving of that redwood
forest on the West Coast, an incredible achievement for which
we give credit to Secretary Babbitt and all who worked on it,
and the State of California.
On the East Coast, in Maine, you might have seen that they
have thousands of acres--I mean, hundreds of thousands of
acres--that have been put into what you might call a
conservation easement.
So good things are happening, and it is important for all
of us to realize that and not just concentrate on the setbacks
that we receive.
Senator Baucus.
Senator Baucus. Thank you very much, Mr. Chairman.
Mr. Guzy, I compliment you on your goals, and the last one
particularly. I hope you have the time; I suspect that in the
daily rush it is going to be difficult to accomplish all that,
but I very much hope that you can.
I would like you, if you could, to just tell us your
thoughts about cost-benefit analysis. It's kind of a buzz word
around here, and well intended; people want to balance the
costs against the benefits and determine what the proper
results should be.
Yesterday we had an oversight hearing on the Safe Drinking
Water Act and, as you know, there is a cost-benefit analysis
provision there, but that's with respect to cancer only and not
other health consequences that might occur, non-carcinogenic
health consequences that might occur.
Senator Voinovich from Ohio suggested at an earlier hearing
this year that perhaps cost-benefit should be applied to the
ambient air standards and to other statutes.
What are your thoughts on what works and what doesn't work?
You don't have to be too conclusionary about it, but what are
some of the benefits and what are some of the problems that you
run into? For example, how do you monetize certain benefits?
Just any guidance you might have.
Mr. Guzy. Sure. Cost-benefit analysis, Senator, can be a
very important analytical tool, cost-effectiveness
considerations, for helping to understand and helping the
public to understand the nature of the decisions we face in the
environment and public health area, and to help improve the
quality of those decisions.
Nonetheless, it carries with it a number of very
significant pitfalls. You've mentioned the Safe Drinking Water
Act, and I think it is an interesting model because it
represents a very carefully balanced approach to the use of
cost-benefit analysis. While it requires that analysis, on the
other hand it doesn't mandate the use of its results as a
decisional tool, and that's absolutely critical.
Second, there was an important recognition that this
committee had in adopting that provision, that judicial review
of the cost-benefit analysis should not be allowed to overwhelm
the decisions that are made, should not become a barrier to
carrying out the responsibilities of that statute.
Statutes and the challenges they pose may differ, so the
kind of balance that is struck under the Safe Drinking Water
Act may or may not be appropriate in different areas. You have
mentioned the fact that the end points under the Safe Drinking
Water Act primarily are cancer; the roots of ingestion are a
glass of water, primarily, whereas something like the Clean Air
Act--widely dispersed pollutants, a wide variety of end points,
and the challenges then become much, much more difficult. There
are very tough questions posed by cost-benefit analysis. How do
you monetize those benefits? How do you truly understand the
values that should be assigned to those things? How much do you
value a lost IQ point in a child? How much can you value a
decision that a child has to stay indoors, that they can't go
outside and play soccer, that they miss a day of school? How do
you value human life?
Oftentimes the results in cost-benefit analysis are so
driven by the assumptions that are put into the equation that
cost-benefit analysis really is a fairly crude tool that, in my
opinion, cannot be used to drive, in and of itself, decisions
about what the appropriate outcome should be.
Let me mention one other thing. There is a very wise
recognition in the Clean Air Act that science and analysis will
change over time, that it will improve, and that's why, for
example, in setting public health ambient air quality
standards, Congress recognized that that should be done
periodically; that you stop, you do the best job you can every
5 years, and continue to refine and improve.
If Congress were to set up a test that requires that every
question have a full answer in every single way, and that that
then can be subject to judicial review in every single fashion,
I believe that would be a recipe for not getting the job done
and for ignoring the fact that science, our understanding,
continues to progress.
Across-the-board statutes may be helpful in advancing more
informed analysis, but if there is a cross-cutting statute, my
belief is that it should not require that cost-benefit-based
decisions be employed as a decisional tool across the board,
and it should not allow judicial review of those analyses to
supplant continued progress.
Senator Baucus. That's a very good response.
Another buzz word, ``sound science.'' What does sound
science mean to you?
Mr. Guzy. Sound science means that we employ the best, most
reasoned basis for agency decisions; that we use the tools that
are available for doing that, such as appropriate peer review
to ensure the integrity of scientific decisions; and also that
we deploy our resources based upon some understanding of what
the relative risks are, based upon use of that science.
It oftentimes, I think unfortunately, is used as a codeword
to challenge agency decisions and the integrity of those agency
decisions based upon an assertion that we may or may not have
taken appropriate steps without really looking carefully at
those steps. One example is the use of appropriate scientific
assumptions. It would be impossible to do our work without
using some scientifically valid assumptions, and not having an
absolutely complete data set in hand.
Senator Baucus. But is it true that in the final analysis
it's a matter of judgment, that science can't make the
judgment, that a regulator or a public policy person must
eventually then make it?
Mr. Guzy. I would agree with you, Senator, that science is
another tool that informs the kind of public policy decisions
that are required under the environmental and public health
statutes, that it oftentimes cannot provide complete yes-or-no
answers, much as we would like it to be able to.
Senator Baucus. Thank you very much. You're going to do a
good job.
Mr. Guzy. Thank you.
Senator Chafee. Senator Lautenberg.
Senator Lautenberg. Very briefly. Since I come from a
business background, I am interested in process. I note that
sometimes between various regional offices, that you will get
different responses to things, and I am sure that's true in the
Office of General Counsel as well.
Have you taken a look at that to see how headquarters
functions with the regionals and see whether or not everybody
has a common view, or what the approach to the problems ought
to be?
Mr. Guzy. I have, and I have found the same thing that
confirms your impressions. At the beginning of last week I met
with all of our regional counsels from all 10 of the EPA
regions, and we had a very productive discussion about ways
that we could improve that situation.
In May, for the first time ever, we are hosting in
Washington a national law office counseling conference, to
provide uniform training to counseling attorneys across the
country. In addition, we will be working to create a National
Legal Council, consisting of our regional counsels, our Deputy
General Counsels who are here today, and our Associate General
Counsels who head our very small offices, in order to ensure
that for difficult problems we can work them through together,
and also that we can wisely deploy our resources so that we are
not duplicating expertise in various areas around the country
and reinventing the wheel.
Senator Lautenberg. OK. You did what I wanted to do, which
was to indicate that you are aware of the problem and that
you're going to do something to solve it. It would make for
easier and more efficient functioning, I think, if we could get
that done.
Mr. Guzy. Yes, sir.
Senator Lautenberg. You did respond in part on this to
Senator Chafee. In the enforcement of environmental law there
is sometimes a question or a doubt about whether it's the
Department of Justice's or EPA's attorneys. Is it possible to
have concurrent jurisdiction on these with the two agencies?
Mr. Guzy. I have actually had, as you know from my
background, the benefit of working in both places. I believe
that there is a very productive and strong relationship between
EPA and the Department of Justice on environmental matters.
They provide a variety of skills that the Agency does not
currently have, and they provide an enormously valuable
perspective as well, based upon their litigating strength.
Nonetheless, I would be happy to work with you to examine
ways in which it may be appropriate to explore additional
litigating authority for the Agency.
Senator Lautenberg. OK. I am on the subcommittee that has
jurisdiction over Justice appropriations, and I am interested
in seeing how we can improve the function.
I thank you very much, and I agree with the comments made
by others that you are going to do very well, that you are
going to represent EPA and the Government very well, and you
also bring some distinction to our precious little State of New
Jersey. Thank you very much.
Mr. Guzy. Thank you, Senator.
Senator Chafee. OK, Mr. Guzy, if you can get those answers
to Senator Inhofe quickly, and send us a copy, if you would, to
the committee here.
Thank you very much.
Mr. Guzy. Thank you, Mr. Chairman.
Senator Chafee. All right. Now, Ms. Udall, why don't you go
ahead with your statement?
STATEMENT OF ANNE UDALL, NOMINATED BY THE PRESIDENT TO BE
REAPPOINTED AS A MEMBER OF THE BOARD OF TRUSTEES OF THE MORRIS
K. UDALL SCHOLARSHIP AND EXCELLENCE IN NATIONAL ENVIRONMENTAL
POLICY FOUNDATION
Ms. Udall. All right. I asked Mark to stay so that I could
really tell you the truth about him.
[Laughter.]
Ms. Udall. We are all really excited about his new job. We
think it's funny that he has to wear a coat and tie every day,
so we give him a hard time, but we're very proud of Mark.
Mr. Chairman and members of the committee, I am pleased and
honored to be nominated for another term on the Board of
Trustees of the Morris K. Udall Foundation. Since the
Foundation's beginning 4 years ago, I have had the privilege of
serving on the Foundation as the vice chair. In the past 4
years we have proudly carried on the vision of a man who has
been a great public servant.
As Senator Chafee mentioned, today is particularly poignant
for me as his colleagues and my family will honor Dad at a
memorial service this afternoon in a place that he loved, the
U.S. Congress.
There has been much said about Dad over the years, but when
Mark and I and four of my other brothers and sisters were at
the White House on behalf of Dad, and President Clinton awarded
Dad the Medal of Freedom, the President said about Dad,
His landmark achievements, such as reforming campaign
finance, preserving our forests, safeguarding the Alaskan
wilderness, and defending the rights of Native Americans were
important indeed. But he distinguished himself above all as a
man to whom other leaders would turn for judgment, skill, and
wisdom. Mo Udall is truly a man for all seasons and a role
model for what is best in American democracy.
Senators will recall that the Udall Foundation is both
similar to, and different from, its predecessors in the Federal
family, the Truman, Madison, and Goldwater Foundations. We are
similar in that we are educational entities that award college
scholarships, fellowships, and internships to further public
goals. The Udall Foundation's focuses are the environment and
Native American affairs.
We differ in that our Foundation was given a broader
mandate than the others. Congress also told us to do policy
work in the areas of Native American health care and
environmental conflict resolution; to hold annual conferences
on important national issues; and to work with the Udall Center
at the University of Arizona to generate new research in our
fields.
The Foundation, in carrying on Dad's legacy, is dedicated
to civility, integrity, and consensus. Since our establishment
we have accomplished the following.
The Foundation has awarded 220 scholarships to college
juniors and seniors who are planning careers in the environment
or Native American health care. Interest in the Udall
scholarships has grown rapidly and today, more than 1,200
colleges and universities participate.
Senator Chafee. I didn't quite understand that. What does
it mean, ``participate''?
Ms. Udall. One of the ways that you succeed in awarding
scholarships is that you make sure that each campus has a
scholarship representative. Actually, campuses can turn you
down. So a scholarship program can come to a campus and say,
``We'd like you to publicize this,'' and they can say no. So
it's really quite an accomplishment when you have 1,200
campuses that actually have representatives who say, ``I will
shepherd this through; I will make sure students hear about
it.''
Senator Chafee. Does Brown University participate, for
example? Do you know?
Ms. Udall. Yes.
Senator Chafee. The University of Rhode Island, perchance?
Do you know? I mean, it seems to me that they ought to.
Ms. Udall. If they don't, we'll make sure they do.
[Laughter.]
Senator Chafee. Well, if you could draw it to their
attention, I would appreciate it.
Ms. Udall. Definitely.
Senator Chafee. It seems to me that it makes a scholarship
available for the young people who are there.
Ms. Udall. Right.
Senator Chafee. Thank you. Go ahead.
Ms. Udall. The demand is such that the Board would like to
raise the annual number of awards from 75 to 100, and the
stipend from $5,000 to $7,500.
We have initiated the first Native American congressional
Internship Program, with which I know you are familiar. This
year we graduated and sent back to their tribes the third class
of Udall interns with an enriched knowledge of Congress and the
executive branch. Congressional interns, all of whom are
college graduates, are split evenly between Republican and
Democratic offices. Three slots have been available at the
White House. Interns are lodged at The George Washington
University and are provided a per diem and, upon successful
completion of the program, a stipend of $1,200.
The program also provides regular counseling, travel to
historic sites, and special meetings with national leaders. The
evidence thus far suggests that our graduates are having a
dramatic impact on their tribes.
The Foundation has begun a program to support top doctoral
candidates in their dissertation years. Last year we began by
authorizing the gift of $24,000 each to two of the Nation's
leading graduate students after a national competition. The
first year was judged a success, yielding two potentially
publishable theses covering new ground in environmental
research. The Board has decided to continue the program this
year and expand it over time as our financial resources grow.
We have sponsored two widely reported national conferences
on environmental issues, and a third conference last October on
Native American health care.
The Foundation has conducted extensive preliminary planning
for a program that will begin this year, which is called Parks
In Focus. In cooperation with the Boys and Girls Club, the
National Park Service, and two private concerns, Cannon and
Kodak, we will take inner city into our National Parks for long
weekends. They will be given cameras and will engage in
photography contests. Their photos then will be displayed in
their schools. This effort with grade school children will
supplement our educational programs which focus primarily on
college and graduate students.
Finally, again, an effort with which the committee is very
familiar, we have undertaken a searching analysis of the
methods of environmental conflict resolution and its possible
use by Federal agencies. The Foundation's efforts include
convening a large national conference on this subject and
conducting simulations to test negotiating methods.
This research led to a request by Senator John McCain, that
the Foundation undertake a formal role as the Federal mediator
in environmental disputes. In consultation with the White
House, Senator McCain introduced S. 399, which was subsequently
approved by the final Senate and House and signed by President
Clinton in January of last year. The law creates within the
Udall Foundation a new Federal entity known as the United
States Institute for Environmental Conflict Resolution. This
Institute will be located with the Foundation in Tucson,
providing a neutral site within the Federal establishment but
outside the Beltway where public and private interests can seek
common ground and settle environmental disputes.
The Institute is intended to give yet another boost to the
growing environmental conflict resolution movement, to move
away from a period of confrontation and litigation to a new
area where we follow Mo Udall's lead and strive for consensus.
I am hopeful that the committee can see the great work that
the Foundation has undertaken and is continuing to pursue. For
me personally, as Mo's daughter and as an American who is
committed to public service in my own life, serving on the
Board of Trustees has been a very special honor for me. Over
the past several years, as Dad struggled daily with the trials
of Parkinson's disease, I had a great deal of pride and
satisfaction knowing that in some small way I was able to carry
on his great work. I would very much appreciate the opportunity
to continue to serve on the Board of Trustees of the Morris K.
Udall Foundation.
Thank you.
Senator Chafee. Well, thank you very much, Dr. Udall.
Are you willing to appear at the request of any duly
constituted committee of the Congress as a witness?
Ms. Udall. Yes.
Senator Chafee. Do you know of any matters which you may or
may not have thus far disclosed which might place you in any
conflict of interest if you are confirmed?
Ms. Udall. No.
Senator Chafee. I take it that your organization is
headquartered in Tucson?
Ms. Udall. That is correct.
Senator Chafee. What other sources of revenue, outside of--
I'm not even sure of what your sources of revenue are. Start
with the Federal Government.
Ms. Udall. The Federal Government in the initial
legislation gave $20 million to the Foundation as their corpus,
and the Foundation has very strict laws that regulate how the
money can be spent. We spend the interest off the corpus. The
Congress just approved another $4.25 million.
The legislation also gives us the opportunity to raise
private funds if we wish, which we have not pursued as a
Foundation, but I think at one point we will look at that as a
possibility.
Senator Chafee. I would encourage you to do that, because I
think that there is going to be a feeling that if there is no
private support for one of these undertakings--and we have
several of them, as you have mentioned here; indeed, I thought
there would have been more than you listed. You mentioned the
Truman, Madison, and Goldwater Foundations. I would have
thought there would be more than that. I thought we did one for
Sam Nunn.
But in any event, I think that the attitude is going to be
that ``it's time each tub stood on its own bottom'' to the
greatest extent possible, and if there is no public support for
such an Institute or Foundation, then why should the Federal
Government continue doing it solely?
Ms. Udall. The Board is very, very aware of the issue that
you have raised. I think in our first couple of years we felt a
very strong commitment to make an impact and to do some good
things with the money. I also agree with you that we will be
looking at and pursuing other sources of support.
Senator Chafee. Good.
You know, it's amazing; there's a lot of money out there.
There is. There is money rolling around in this country that
astonishes you. Some humble-seeming person that you never
suspected will walk in and plunk down a million dollars. Now,
I'm not saying that these things are lying around and all you
have to do is bend over and pick them up, but it is
astonishing, the money that can be raised.
Senator Baucus.
Senator Baucus. Thanks, Mr. Chairman.
I might say, you might try to grab it now before the stock
market takes a dip.
[Laughter.]
Senator Baucus. I am particularly interested in conflict
resolution. Could you tell us what you are doing and what
lessons you have learned that could be applied elsewhere in
environmental disputes?
Ms. Udall. Right now, Senator Baucus, the Conflict
Resolution Center has really been in the process of defining
its role and really looking at how it is going to be a broker
for other Federal agencies.
I think one of the things that we're learning is that once
you get people to the table, you can often find common ground,
and it's about really encouraging people that there is a
benefit to talking about something before you look at
litigation.
Senator Baucus. Now, do you make yourselves available for
various disputes?
Ms. Udall. Yes. The law states that Federal agencies must
use us before they move to litigation, and then we will also
make ourselves available to other people as a broker for
services. We will engage in some mediation, but our primary
responsibility is to help agencies and other groups that are in
disagreement to find people who can help them mediate.
Senator Baucus. Can you give us an example of where you've
jumped in and helped?
Ms. Udall. Yes. Right now we're looking for perhaps a
national case or two to take on, but one that we did get
involved in was actually in Arizona. We helped mediate some
work over the placement of a building and how it would impact
on the owl population. There were a number of agencies in the
Arizona area that were particularly deadlocked, so the
Institute helped pull together some folks to talk about it and
to really see if we could resolve that.
Senator Baucus. Do you get at all involved in undertakings
to start even earlier, sort of work with groups to prevent
conflicts from arising in the first place?
Ms. Udall. One of the big pieces--and the Board right now
is really sort of fleshing out how we want to make an impact,
because it is such a growing area and there is such great
need--but one of the areas that we are putting a lot of
attention on is the actual training of folks in conflict
mediation who are involved, so that before it even gets to the
point of litigation, people realize that there are tools
available to them and how they might reach consensus.
Senator Baucus. Again, can you give an example?
Ms. Udall. I don't have any examples of the training we
have provided, although I do know that that will be a major
focus for us over the next 2 years.
Senator Baucus. Now, is your charter for conflict
resolution broad? Is it narrow?
What I'm getting at is this. We have a highway problem in
Montana----
[Laughter.]
Ms. Udall. Bring it on, right?
Senator Baucus. Right. It is Highway 93, and it is very
heavily traveled. It is a very scenic part of Montana. It goes
through a Salish-Kootenai Reservation, a Flathead Reservation,
and the Federal Government, the Federal Highway Administration,
the State, and the tribe are trying to figure out what to do
with this highway. We all know there's going to be a highway,
we just don't know what the design is going to be.
So I will give them your name.
[Laughter.]
Ms. Udall. We are ready.
As an outsider to all of this, when this issue was first
raised and we pulled together a lot of people, I was astounded
at the sort of ``family conflicts'' that arise just among
Government agencies. It was astounding to me.
So it is very much part of our vision to work in situations
like you described.
Give them Terry's name and Chris' name.
[Laughter.]
Senator Baucus. OK. Well, if you get a phone call, you will
know where it came from.
Ms. Udall. That's great.
Senator Baucus. OK, thank you.
Senator Chafee. I know Senator McCain was very anxious to
be here to introduce you, Dr. Udall, and regrettably he
couldn't be here, but I want to officially say that I am sure
he regrets a great deal that he couldn't be here.
Ms. Udall. Thank you.
Senator Chafee. OK, that concludes it. We thank you, and we
want to move along with this nomination rapidly.
Ms. Udall. Thank you very much, Senator.
[Whereupon, at 9:58 a.m., the committee was adjourned, to
reconvene at the call of the chair.]
Statement of Gary S. Guzy, Nominated to be General Counsel,
Environmental Protection Agency
Thank you and good morning, Mr. Chairman and Members of the
Committee. It is a great honor to be here today and to have been
nominated by the President and asked by Administrator Browner to serve
as General Counsel of the Environmental Protection Agency.
I believe that now is an opportune time to be taking on the
challenges of serving as EPA's General Counsel for several reasons:
First, EPA today is a fundamentally different organization that is
reconnected to communities and the American people--helping make a
difference in the issues people face in their everyday lives. EPA no
longer is ``the crucible of everyone's discontent'', as it was once
referred to in the past. It has become the crucible of hope. Whether it
be the child who suffers from asthma, or the family that lives near a
river too polluted for fishing or swimming, our Nation still has much
to do to protect the health of its citizens and its environment. As I
go about my work, I think back to my early childhood--living in Newark,
New Jersey, with my mother, a single parent and a dedicated public
school teacher. From it I recognize that a government that is caring
and honest and open can make a difference in the lives of ordinary
citizens. I look to my own two small children and recognize the
importance of the work we are embarked on together, to assure them a
healthy future and the continued enjoyment of our Nation's legendary
natural bounty that has been so important throughout my life.
Second, I am hopeful we are again entering a time of basic
agreement on the tasks that are to be done to advance public health and
environmental protection. The pendulum has done some swinging back and
forth now for many years, but I now sense a more fundamental agreement
on the important work that we all have to do together to continue the
bipartisan accomplishments of the past 30 years. As the public health
and environmental statutes have matured, we must keep their overall
goals and framework in mind as we apply the law to new situations in
fresh ways. These developments will continue to challenge us, and will
demand balance, common sense, and judgment. If confirmed, I look
forward to a close cooperative relationship with the Committee and its
staff in carrying out this work.
I have been privileged over the last several years to have worked
with Administrator Browner, who with her senior leadership team, has
demonstrated an uncompromising commitment to the protection of public
health and the environment, accomplished through creative means that
provide unprecedented flexibility to communities and industry. This
approach has continued to demonstrate that our economy and our
environment are inextricably linked and that a strong economy and a
healthy environment are twin and compatible goals that must drive our
actions.
In the course of this work, I have had the opportunity to work with
several members of this committee and their staffs on many issues of
shared interest. These include working to protect children from the
threat of environmental tobacco smoke and helping to insure the future
of the Everglades. These efforts have required the careful and
respectful coordination of activities in the legislative, executive,
and judicial branches.
When I think of some of the major issues EPA will face over the
next several years, I am struck by how central lawyering will continue
to be to the success of these efforts. Whether it be new efforts to
apply more broadly the lessons learned from reinvention, or EPA's
setting of new tailpipe emissions and sulfur in fuels standards; or our
implementation of the protections for children of the new Food Quality
Protection Act, or new chemical testing initiatives being developed
with industry and the environmental community; whether it be meeting
the challenge of the responsible collection, use and dissemination of
information, or EPA's work under the Clean Water Action Plan to address
non-point source pollution--all of these challenges will demand the
best from our Nation's premier environmental law firm.
I am delighted to be rejoining a group that is as talented,
creative, dedicated, and hardworking as the career staff at EPA's
Office of General Counsel. They have an expertise in environmental law
that is unmatched. I recognize that EPA's currency with Congress, the
courts, and the public is its credibility, and that much of this rests
with the objectivity and integrity of the work of the Agency's Office
of General Counsel. I look forward to continuing the great traditions
of that office and to this opportunity for continued public service.
I also know--from my career in the private practice of
environmental law representing private industry and States, and then
from my work at the Department of Justice and at EPA representing the
Federal Government--that keeping an open mind and being attentive to
absolute fairness of process for all affected parties are also
essential to the ultimate success of our work. When I clerked for Judge
Elbert Tuttle--who had by then served as a Federal Circuit Court judge
for 30 years, following his already long and distinguished career in
private practice and the military--it so impressed me that he was
vitally interested in my relatively uninformed views. This openness of
thinking--this reaching out to hear all perspectives, no matter how
long or hard we have been immersed in an issue--is critical to
improving the quality of EPA's analysis and of its decisions. Also
critical is maintaining the highest of ethical standards. These are
values that, if confirmed, I will strive to take to my job every day,
and to continue to build in our staff.
I will also work tirelessly to ensure that we create a seamless web
of consultation with our agency clients by early work to help identify
sound legal approaches to carrying out the Agency's mission. I want to
build on the capacity for innovative, not purely reactive, counseling.
And I recognize that the EPA's General Counsel has the rare luxury of a
vantage point that cuts across all of the Agency's work--providing an
important perspective and means for integrating disparate agency
activities.
I wish you could have joined me several weeks ago when I went door-
to-door at EPA's offices to meet the staff of the Office of General
Counsel. The excitement of our lawyers at working for the public on the
issues EPA confronts every day is palpable and invigorating. It is a
joy to see. But it also creates a deep responsibility to lead this
group wisely, as does the responsibility of ensuring that our Nation's
environmental laws are faithfully carried out. These are public trusts
that, if confirmed, I look forward to working closely with you to
continue to ensure.
I would be pleased to answer any questions you may have.
Office of Congressional and Intergovernmental Relations,
Environmental Protection Agency,
Washington, DC 20460, May 7, 1999.
The Honorable John Chafee, Chairman
United States Senate
Washington, DC 20515
Dear Mr. Chairman: This letter completes our response to the two
requests for information that Senator Inhofe made during the March 4,
1999 hearing on the nomination of Gary Guzy for the position of the
Environmental Protection Agency (EPA) General Counsel and that you
clarified in a letter dated March 10, 1999. It supplements the partial
responses we sent you on March 15.
First Request
In your first request, you and Senator Inhofe asked for:
a list, covering the last ten years, of all grants to
individuals or organizations (except States and local
governments) that have also sued the Agency, including pending
litigation. Please include the amount and purpose of the grant,
and the relevant dates for the grants and the lawsuits.
In discussions with Chad Bradley of Senator Inhofe's staff on March
19, Mr. Bradley clarified that grants to Tribal governments, as well as
State and local governments, are excluded from this request.'
In response to your request, we are enclosing a list of non-
governmental individuals and organizations that received grants from
EPA from January 1, 1989 to March 31, 1999 and that also sued EPA
during that period. For each grant received by these individuals and
organizations during the January 1, 1989-March 31, 1999 period, we have
identified the amount of the grant.
Although your request does not cover governmental entities, EPA has
been sued on many occasions by States, local governments, and tribes
that have received EPA grants.
the purpose of the grant, the date the grant was awarded, and the
date of the project. In a separate list, we have identified the filing
dates of the lawsuits brought by these entities against EPA.
Our response to this request was prepared by cross-checking a
Department of Justice computerized list of all the parties in all the
cases filed against EPA since January 1, 1989 against a computerized
list of EPA grant recipients from FY 1989 to the present. After we
identified those grant recipients that were also parties in lawsuits
against EPA, we cross-checked that list against the computerized case
list, and came up with a list of cases brought by EPA grantees.
We encountered a number of challenges trying to ensure accurate
results. For example, quite a few of the over 3500 names on the case
list were incomplete, and we had difficulty matching them up with the
names on our grants list (and vice versa). The case list identified
lead plaintiffs and lead petitioners, but did not indicate the party
status of other listed parties. We tried to clarify some of this
information by checking paper files, but the files were sometimes
incomplete, particularly for older cases. In short, while we believe
the enclosed lists are reasonably accurate and complete, it is possible
that they may contain some errors or omissions.
We also want to bring one other issue to your attention. In a
number of situations involving related corporate entities or chapters
of national non-profit organizations, we had difficulty determining
whether the entity that sued us was the entity that received a grant.
For example, EPA has been sued by Texaco Exploration & Production, Inc.
We do not know whether this company is part of Texaco, Inc., which
received a grant from us, or is a separate corporate entity. Where we
were able to sort out these types of relationships, we have done so.
Where we were unable to do so, we have taken the conservative approach
of listing all grantees and all litigants. This may overstate, however,
the number of litigants who received EPA grants.
You should be aware that every EPA grant agreement is conditioned
on compliance with OMB Circulars that prohibit the use of grant funds
for suits against the Government. Specifically, they prohibit ``costs
of legal, accounting, and consultant services, and related costs,
incurred in connection with ... the prosecution of claims or appeals
against the Federal Government'' (OMB Circular No. A-122, Attachment B.
Section 10.g, which applies to nonprofit organizations; same provision
in Circular No. A-21, Section J. 1 l.g, which applies to educational
institutions) and ``legal expenses for prosecution of claims against
the Federal Government'' (Circular No. A-87, Attachment B. Section
14.b, which applies to State, local, and tribal governments). In
addition, EPA's appropriation acts provide that grant funds may not be
used ``to pay the expenses of, or otherwise compensate, non-Federal
parties intervening in regulatory or adjudicatory proceedings.''
In addition, there are numerous administrative checks to assure
that these requirements are met. EPA carefully reviews all grant
applications and does not approve applications which indicate that
grant funds are to be used for litigation. Every grant agreement
expressly states that the agreement is subject to all applicable legal
requirements, including statutes and OMB circulars such as the ones
cited above. At the time a grant is closed out, the grantee must
certify that grant funds have been spent consistent with the grant
agreement. If EPA disagrees, it may disallow the expenditures.
Furthermore, if the grantee knowingly falsifies this certification, it
is subject to criminal penalties. Finally, improper expenditures may be
identified either through EPA's oversight of grant agreements or
through the Inspector General's audit of particular grant agreements.
Second Request
In his original second request, Senator Inhofeasked for ``a list of
all parties to any 'consent agreements' that the EPA entered into over
the last six years.'' He also asked us to provide ``a description of
what was agreed to in the consent agreements, and which parties were
present during the negotiations.'' On the afternoons of March 4 and 5,
Mr. Bradley clarified that this request (1) was limited to non-
governmental parties and does not include states, tribes, and local
governments, (2) was limited to consent orders in defensive litigation
and does not cover consent orders in enforcement litigation or
settlement agreements, and (3) covered a ten-year period.
On March 15, we sent you and Senator Inhofe and Senator Baucus, a
table responding to your request as we understood it. After we sent you
this information, we received your March 10 letter, which further
clarified the request as follows:
I would like a list of all parties to any ``consent agreements,''
``settlement agreements,'' or related matters that the EPA entered into
over the last ten years, including pending litigation. Please include a
description of what was agreed to in the consent agreements, and which
parties were present during the negotiations.
In a March 19 discussion, Mr. Bradley clarified that (1) this
request is limited to consent orders and settlement agreements in
defensive litigation and does not cover consent orders or settlement
agreements in enforcement litigation, (2) the reference to pending
litigation means that the list should include consent agreements and
settlement agreements in pending (as well as closed) cases, and (3) the
reference to ``related matters'' means that the list should include any
court document that has the same effect as a consent order or
settlement agreement.
Enclosed are two tables containing the information you requested,
plus information on the basis for the consent orders and settlement
agreements. Because some of the EPA attorneys who worked on the older
consent orders and settlement agreements are no longer employed by the
Agency and because some of our older litigation files contain limited
information, we had some difficulty assembling the information you
requested for some of our older cases2. We believe, however, that the
enclosed tables are reasonably accurate and complete.
2 For a few of our older cases, we have been unable to identify a
case number or other pertinent infonnation about the case.
Please note that virtually all the orders in the enclosed consent
order table merely establish court deadlines for EPA actions that are
required by statute and do not dictate the content of those actions.
Where they involve a commitment to undertake rulemaking, EPA's actions
would be subject to the notice-and-comment provisions of the
Administrative Procedure Act. Like all consent orders, each of these
orders was reviewed at a high level within the Department of Justice
and by a court to ensure that it was fair, reasonable, and in the
public interest. In addition, it is the policy of the Department of
Justice that the United States not consent to court orders which
contain provisions for injunctive relief which could not be ordered by
a court unilaterally. Finally, you should be aware that Section 113(g)
of the Clean Air Act requires EPA to provide notice of and opportunity
to comment on defensive consent orders under the Clean Air Act before
they are final or filed with a court, a practice to which EPA carefully
adheres.
The settlement agreements generally fall into three main
categories: (1) agreements to resolve challenges to Agency rulemaking,
in which EPA agrees to conduct further rulemaking or studies or to
issue guidance on or otherwise clarify some aspect of the rule, (2)
agreements to resolve disputes involving the payment of money (e.g.,
requests for attorneys' fees, takings claims, claims for reimbursement
of response costs under Superfund), and (3) agreements to resolve
allegations of Agency inaction, in which EPA agrees to take action by a
date certain or to take actions which will contribute to the timely
resolution of a matter. Like consent orders, rulemaking undertaken
under these agreements would be subject to the notice-and-comment
provisions of the Administrative Procedure Act, and the agreements
themselves are reviewed by the Department of Justice and a court.
We believe this responds fully to the requests you and Senator
Inhofe made on March 4 and 10. If you need additional information on
this matter, however, we would be pleased to provide it.
Sincerely,
Diane E. Thompson,
Associate Administrator for Congressional and Intergovernmental
Relations.
Statement by Anne J. Udall, Vice-Chair, Morris K. Udall Foundation
Mr. Chairman and Members of the Committee: I am pleased and honored
to be nominated for another term on the Board of Trustees of the Morris
K. Udall Foundation. Since the Foundation's beginning 4 years ago, I
have had the privilege of serving on the Foundation as the vice-chair.
In the past 4 years we have proudly carried on the vision of a man who
has been a great public servant.
Today is particularly poignant for me as his colleagues and my
family will honor Dad at a memorial service he loved, the U.S.
Congress.
There has been much that has been said about Dad over the years,
but President Clinton summed up his contributions to our country when
awarding Dad the Medal of Freedom:
His landmark achievements, such as reforming campaign
finance, preserving our forests, safeguarding the Alaskan
Wilderness and defending the rights of Native Americans, were
important indeed. But he distinguished himself above all as a
man to whom others--leaders--would turn for judgment, skill and
wisdom. Mo Udall is truly a man for all seasons and a role
model for what is best in American democracy.
Senators will recall that the Udall Foundation is both similar to
and different from its predecessors in the Federal family: the Truman,
Madison, and Goldwater Foundations. We are similar in that we are
educational entities that award college scholarships, fellowships and
internships, to further public goals. The Udall Foundation's focuses
are the environment and Native American affairs.
We differ in that our Foundation was given a broader mandate than
the others. Congress also told us to do policy work in the areas of
Native American health care and environmental conflict resolution, to
hold annual conferences on important national issues and to work with
the Udall Center at the University of Arizona to general new research
in our fields.
The Foundation, in carrying on Dad's legacy, is dedicated to
civility integrity, and consensus. Since our establishment, we have
accomplished the following:
The Foundation has awarded 220 scholarships to college
juniors and seniors--planning careers in the environment or Native
American health care. Interest in Udall scholarships has grown rapidly,
and today more than 1,430t colleges and universities participate. The
demand is such that the Board would like to raise the annual number of
awards from 75 to 100 and the stipend from $5,000 to $7,500.
We have initiated the first Native American Congressional
internship program. This year we graduated and sent back to their
tribes the third class of Udall interns with an enriched knowledge of
Congress and the executive branch. Congressional interns, all of whom
are college graduates, are split evenly between Republican and
Democratic offices; three slots have been made available at the White
House. Interns are lodged at George Washington University and are
provided a per diem and, upon successful completion of the program, a
stipend of $1,200. The program also provides regular counseling, travel
to historical sites, and special meetings with national leaders. The
evidence, thus far suggests that our graduates are having a dramatic
impact on their tribes.
The Foundation has begun a program to support top doctoral
candidates in their dissertation years. Last year, we began authorizing
the gift of $24,000 each to two of the Nation's leading graduate
students after a national competition. The first year was judged a
success, yielding two potentially publishable theses covering new
ground in environmental research. The Board has decided to continue the
program this year and expand it over time as our financial resources
grow.
We have sponsored two widely reported national conferences
on environmental issues, and a third conference last October on Native
American health care.
The Foundation has conducted extensive preliminary
planning for a program that will begin this year called ``Parks in
Focus.'' The cooperation with the Boys and Girls Clubs, the National
Park Service and two private concerns, Cannon and Kodak, we will take
inner-city children into our national parks for long weekends. They
will be given cameras and will engage in photography contests. Their
photos then will be displayed in their schools. This effort with grade
school children will supplement our educational programs which focus on
college and graduate students.
Finally, we have undertaken a searching analysis of the
methods of environmental conflict resolution and its possible use by
Federal agencies. The Foundation's efforts included convening a large
national conference on the subject and conducting simulations to test
negotiating methods.
This research led to a request by Senator John McCain that
the Foundation undertake a formal role as the Federal mediator in
environmental disputes. In consultation with the White House, Senator
McCain introduced S. 399, which was subsequently approved by the final
Senate and House and signed by President Clinton in January of this
year. The law creates within the Udall Foundation a new Federal entity
known as the U.S. Institute for Environmental Conflict Resolution.
The institute will be located with the Foundation in
Tucson, providing a neutral site within the Federal establishment but
outside the ``Beltway'' where public and private interests can seek
common ground and settle environmental disputes. The Institute is
intended to give yet another boost to the growing environmental
conflict resolution movement to move away from a period of
confrontation and litigation to a new area where we follow Mo Udall's
lead and strive for consensus.
I am hopeful that the Committee can see the great work the
Foundation has undertaken and is continuing to pursue. For me
personally, as Mo's daughter and as an American who is committed to
public service in my own life, serving on the Board of Trustees has
been a very special honor for me. Over the past several years, as Dad
struggled daily with the trials of Parkinson's disease, I have had a
great deal of pride and satisfaction knowing that in some small way I
was able to carry on his great work I would very much appreciate the
opportunity to continue to serve on the Board of Trustees of the Morris
K. Udall Foundation.
Office of Hon. Jim Kolbe,
U.S. House of Representatives,
Washington, DC, March 1, 1999.
Hon. John Chafee, Chairman,
Committee on Environment and Public Works,
Washington, DC.
Dear Mr. Chairman: It gives me great pleasure to relay my support
for the re-nomination of Anne Udall as Vice Chairwoman of the Morris K.
Udall Foundation Board of Trustees.
I have known Anne for years, and she has done a remarkable job as a
trustee for the Foundation. She is a sincere, dedicated and committed
member of this organization. The struggle to resolve environmental
issues seems to be a never-ending task Nevertheless, people like Anne
Udall have taken it upon themselves to solve these problems by bringing
all parties together to communicate their needs and values so that, in
the end, everyone walks away a winner.
I appreciate your committee's work in this area. Under your
guidance, the Senate Environment and Public Works Committee has shown
the fairness and thoughtfulness, which we all strive to achieve.
Sincerely,
Jim Kolbe,
Member of Congress.