[Senate Hearing 106-952]
[From the U.S. Government Publishing Office]
S. Hrg. 106-952
BILL TO ESTABLISH REGION 11 OF THE ENVIRONMENTAL PROTECTION AGENCY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
JUNE 6, 2000
__________
ON
S. 1311
A BILL TO DIRECT THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION
AGENCY TO ESTABLISH AN ELEVENTH REGION OF THE ENVIRONMENTAL PROTECTION
AGENCY, COMPRISED SOLELY OF THE STATE OF ALASKA
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
71-514 WASHINGTON : 2002
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTH CONGRESS
second session
BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
Tom Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
JUNE 6, 2000
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 2
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 1
WITNESSES
Brown, Michele D., Commissioner, Alaska Department of
Environmental Conservation..................................... 14
Prepared statement........................................... 42
Responses to additional questions from Senator Smith......... 48
Diaz, Romulo L., Jr., Assistant Administrator for Administration
and Resources Management, Environmental Protection Agency...... 12
Prepared statement........................................... 37
Responses to additional questions from Senator Smith......... 40
Freeman, Ken, executive director, Resource Development Council... 17
Prepared statement........................................... 51
Murkowski, Hon. Frank, U.S. Senator from the State of Alaska..... 3
Administrative order, EPA Administrator William K. Reilly.... 5
Prepared statement........................................... 36
ADDITIONAL MATERIAL
Statement, Melanie L. Griffin, director, Lands Protection
Programs, Sierra Club.......................................... 54
Text of S. 1311, A bill to direct the Administrator of the
Envronmental Protection Agency to establish an eleventh region
of the Environmental Protection Agency, comprised solely of the
State of Alaska................................................ 56
(iii)
BILL TO ESTABLISH REGION 11 OF THE ENVIRONMENTAL PROTECTION AGENCY
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TUESDAY, JUNE 6, 2000
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room
406, Senate Dirksen Building, Hon. Bob Smith (chairman of the
committee) presiding.
Present: Senators Smith and Baucus.
OPENING STATEMENT OF HON. BOB SMITH,
U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Smith. The committee will come to order.
Good morning, Senator Murkowski. I'll have a very brief
opening remark, then Senator Baucus may have a comment, then,
we'll turn to you, Senator Murkowski.
Today, we will address the topic as to whether the EPA
should establish a separate region known as Region 11 for the
State of Alaska. That question is before us in the form of a
bill, S. 1311, which was introduced by our colleague, Senator
Frank Murkowski of Alaska. The bill, S. 1311, would direct the
EPA to create a separate region for Alaska and to place a
regional office in Alaska, and would authorize such funding as
necessary to achieve that goal.
The bill stems from and reflects a longstanding interest on
the part of both Senators Murkowski and Stevens to see the
adoption of a separate region, EPA region, for their home
State. Several years ago, this subject was addressed in a
different context. Section 522 of the Department of VA and
Housing and Urban Development Independent Agencies
Appropriations Act of 1992, fiscal year 1992, authorized the
creation of a separate EPA region for Alaska.
And on the last day of the Bush administration, EPA
Administrator William Reilly signed an administrative order
exercising that authority and creating a separate Alaska
district. However, the Clinton administration never implemented
that order, and Alaska today is still part of EPA Region 10. So
in my discussions and questions with the administration, we'd
like to focus a little bit on that as to what the rationale for
that is.
With that in mind, let me turn for a moment to Senator
Baucus, if you have any opening remarks.
[Prepared statement of Senator Smith follows:]
Statement of Senator Bob Smith, U.S. Senator from the State of
New Hampshire
Good morning. Today, we will address the following topic: Should
the EPA establish a separate region--a Region 11--for the State of
Alaska? That question is before us in the form of a bill--S. 1311--that
was introduced by our colleague Senator Murkowski from Alaska. Senate
bill 1311 would direct the Environmental Protection Agency to create a
separate region for Alaska and would authorize such funding as is
necessary to achieve that goal.
This bill stems from and reflects a longstanding interest on the
part of Senators Murkowski and Stevens to see to the adoption of a
separate EPA region for their home State. Several years ago, for
example, this subject was addressed in a different context. Section 522
of the Departments of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations Act for Fiscal
Year 1992, authorized the creation of a separate EPA region for Alaska.
On the last day of the Bush administration, EPA Administrator William
Reilly signed an administrative order exercising that authority and
creating a separate Alaska district. The Clinton administration did not
implement that order, however, and Alaska today, is still part of EPA
Region 10.
There are several arguments on each side of this issue. We have
before us the written statements of today's witnesses, and we will hear
from those witnesses, their testimony pro and con, on this bill. Rather
than now summarize their positions, I will let the witnesses themselves
make their own statements.
But out of respect for our colleague from Alaska, I will note that
perhaps the most often-advanced argument in favor of this proposal is
that the uniqueness of Alaska militates in favor of treating that State
as a separate EPA region. In that regard, American author Jack London
once made two points that undergird the argument advanced by our
colleague--first, that Alaska is a unique land and, second, that, only
by being willing to adapt to those features of Alaska that render it
unique, can a person truly come to understand what it means to be an
Alaskan. Let me read a quote from Jack London that makes those points
[``In a Far Country'' (1899), reprinted in The Portable Jack London 11-
12 (Earle Labor ed. 1994)]:
When a man journeys into a far country, he must be prepared
to forget many of the things that he has learned, and to
acquire such customs as are inherent with existence in the new
land; he must abandon the old ideals and the old gods, and
oftentimes he must reverse the very codes by which his conduct
has hitherto been shaped. To those who have the protean
facility of adaptability, the novelty of such change may even
be a source of pleasure; but to those who happen to be hardened
to the ruts in which they were created, the pressure of the
altered environment is unbearable, and they chafe in body and
spirit under the new restrictions which they do not understand.
This chafing is bound to act and react, producing divers evils
and leading to various misfortunes. It were better for the man
who cannot fit himself to the new grove to return to his own
country; if he delay too long, he will surely die.
The man who turns his back upon the comforts of an elder
civilization, to face the savage youth, the primordial
simplicity of the North, may estimate success at an inverse
ratio to the quantity and quality of his hopelessly fixed
habits. He will soon discover, if he be a fit candidate, that
the material habits are the less important. * * * For the
courtesies of ordinary life, he must substitute unselfishness,
forbearance, and tolerance. Thus, and only thus, can he gain
that pearl of great price--true comradeship. * * *
With all that in mind, let me thank our colleague Senator Murkowski
for being here today to speak on behalf of his bill. Senator Murkowski,
you have the floor.
OPENING STATEMENT OF HON. MAX BAUCUS,
U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. Thank you very much, Mr. Chairman.
Mr. Chairman, I join you, I'm sure, in sympathizing with
the Senator from Alaska over his concerns, that is, a State
that's so far away from any of the regional offices of EPA, let
alone Washington, DC. I must say, we share some of the same
concerns in our State. We may not be as large as Alaska or as
sparsely populated or as far away.
But the fact is, we are a large State and we are sparsely
populated, and in our case, the Federal Government owns about a
third, close to a third of our total land area. So to put it
lightly, the Federal Government has a very strong influence on
our State. And that's particularly true in western Montana,
where there are a lot of conflicts, natural resource conflicts.
I must say, too, just to give an example, that decisions
that affect Montana are made as far away as either Washington,
DC. or a distant regional office. EPA, for example, which very
much affects Montana, is in Denver. The Bonneville Power
Administration is in Portland. The National Marine Fisheries
Service, which determines what must be done to recover salmon,
is in Seattle. The Corps of Engineers, which affects our State
dramatically, is in Omaha.
So we often feel that these offices make decisions that
don't take adequate account of Montana's interest, whether it's
BPA considering the great effects of a small aluminum plant in
Columbia Falls, MT, or the Army Corps of Engineers favoring
downstream over upstream interest on the Missouri River. So I
share Senator Murkowski's frustration with the way this system
works, or the way it sometimes doesn't work.
However, I must say I'm a little bit concerned about a
proposal to create a separate region for one State. First of
all, in this case, it would be costly. It would also give
special treatment to a single State over all the other States.
And it may raise concerns from the other States in Region 10
where they might get short shrift. And by creating a full blown
11th EPA region for a single State, we also have to face the
question of balance, that is, balance between the goals on the
one hand of maintaining a national system of environmental laws
and on the other hand, being sensitive to local concerns.
Now that we have regional offices that affect several
States at a time, I think we do strike that balance. Certainly
the question is raised when the single EPA office, a single
regional office, is responsible for only one State.
So, I, at this point, Mr. Chairman, am somewhat skeptical
about S. 1311. It may be a more radical approach than is
necessary to strike the balance. But that said, I deeply
appreciate the presence and the testimony of Senator Murkowski,
and will listen very closely to what he has to say.
Senator Smith. Senator Murkowski, the floor is yours.
Welcome.
STATEMENT OF HON. FRANK MURKOWSKI, U.S. SENATOR FROM THE STATE
OF ALASKA
Senator Murkowski. Thank you very much, Mr. Chairman,
Senator Baucus. It's a pleasure to be here. I spent a good deal
of time in this committee back in 1981 and 1982, wrestling with
problems that you're still wrestling with today.
Thanks for scheduling this hearing. As you know, this has
been on our list for some time. Senator Stevens and I
introduced the language to establish an EPA region in Alaska.
Now, a legitimate question has been asked, ``Why does Alaska
need a separate region?'' Our State is 65 percent owned by the
Federal Government. We have less than 1 percent of our land
mass that's privately owned. The native regional corporations
were given a settlement in our State, and that settlement
resulted in 40 million acres of land being transferred to them.
But part of the answer really lies in the uniqueness of our
ecosystem and the extent of the piece of real estate known as
Alaska. We have about 365 million acres, about 586,000 square
miles. I don't see anybody from Texas here, so I won't offend
anybody if I remind you that it's 2\1/2\ times the size of
Texas, a little more than 63 times the size of New Hampshire,
Mr. Chairman. We have about 2,400 miles from east to west, and
about 1,400 miles north to south.
I used to run a financial institution in our State. And we
ran it through four time zones. Trying to balance in one area
and communicate to another was a problem. So we'd usually
balance the next day. We have 170 million acres of wetlands,
that's 65 million acres more than the combined total of
wetlands in all of the other 49 States. We have a coastline
larger than the rest of the Nation combined, approximately
47,300 miles of coastline. We have 3 million lakes larger than
20 acres. We have ecosystems ranging from an arctic desert to
temperate rainforest, including ecosystems that are found
nowhere else in the United States.
In addition, Alaska is more ecologically diverse than any
other State. And for the last 40 years, the energy wealth of
North America has been coming from Alaska, and primarily that
area that's unique, because it's north of the Arctic Circle.
It's been supplying nearly 25 percent of the total oil produced
in this country, and the gas reserves are estimated to be
somewhere in the area of 40 to 70 trillion cubic feet of gas.
And the question of the marketing of the gas is a challenge
that's before the State and before the Nation and will be
before the EPA.
Now, that's why virtually every other Federal agency, and I
would encourage Senator Baucus to reflect on this, every other
Federal agency with environmental or conservation
responsibilities has a region distinct in Alaska. That includes
the National Park Service, that includes the Fish and Wildlife
Service, the Bureau of Land Management, the Forest Service, the
Geological Survey, the Bureau of Indian Affairs, the Mineral
Management Services and the Bureau of Mines. Those have been
located in Alaska because of the uniqueness of the stewardship
associated with the Federal agencies and their oversight
responsibilities.
Even the Federal Aviation Administration has a region
comprised only of Alaska. Moreover, the Coast Guard and the
Army Corps of Engineers have distinct district offices that are
in Alaska, and specifically devoted to Alaskan issues.
Congress has already recognized the merits of an Alaska
region for the Environmental Protection Agency. In the fiscal
year 1992, the VA-HUD appropriations bill, at that time
Congress authorized the President to establish an eleventh
region of EPA consisting solely of the State of Alaska. An
administrative order to that effect was signed by EPA
Administrator William K. Reilly, as the chairman mentioned, in
January 1993. Unfortunately, the order was not carried through.
I would ask that a copy of the signed order be included in
the hearing record today.
Senator Smith. Without objection, it will be included.
[The information referred to follows:]
U.S. Environmental Protection Agency,
Washington, DC.
ADMINISTRATIVE ORDER
By the authority vested in me as Administrator of the United States
Environmental Protection Agency in section 3, Reorganization Plan 3 of
1970, 5 U.S.C.A. App. 1 (Supp. 1992), and as authorized in Section 522
of the HUD-VA-Independent Agencies Appropriations Act for fiscal year
1992, Pub. L. No. 102-139, 105 Stat. 736, 781; it is hereby ordered:
Section 1. Establishment of Region XI. There is hereby established
Region XI of the United States Environmental Agency, which shall
consist solely of the State of Alaska.
Section 2. Transfer of reassignment of resources and designation of
Regional Office and Regional Administrator. The determination of
records, property, personnel, and positions, and unexpended balances of
appropriations that relate to the functions transferred, reassigned, or
redelegated by this order, and the designation of a Regional Office and
Acting Regional Administrator will be made by subsequent order.
Section 3. Effective data. The provisions of this administrative
order are effective immediately.
Dated this 20th day of January, 1993.
William K. Reilly,
Administrator, U.S. Environmental Protection Agency.
Senator Murkowski. Thank you, Mr. Chairman.
Mr. Chairman, I know from my service on this committee when
I first came to the Senate, and as you know from your
leadership on environmental issues, environmental protection is
a complex undertaking. One-size-fits-all approaches cannot be
written in Washington or Seattle and necessarily applied in our
State of Alaska. Bringing the regulator closer to the problem
yields better discussions, more effective and thoughtful
regulation.
One of the uniquenesses of our State is we have seasonal
activities, just as you have in Montana, Senator Baucus. It is
as a consequence very easy for the EPA administrators to
reflect on their deliberations and simply put something off for
a month or two which costs us a whole year, because if we lose
a construction season, we've lost a year.
Furthermore, the distance from Seattle to Anchorage is
about 1,200 miles. So by the EPA traversing back and forth,
they buildup substantial air miles and they're good for the
hotels and restaurants in Anchorage, AK, but it's not like they
live there, send their children to school, relate and get an
understanding of the uniqueness of our State.
As I have indicated, over 65 percent of Alaska is
controlled and owned by the Federal Government. Most EPA
activities directed at Alaska require coordination with Federal
land managers who are headquartered in Alaska. That's the other
land areas, the Forest Service, the Park Service, BLM and so
forth.
Other benefits that we expect from this legislation include
reduced number of appeals and adjudications, reduced travel
between Seattle and Alaska. And I might add, a 1,200 mile trip
takes all day. Better service to the public, lower cost. Now,
while EPA may disagree, the last time we asked the Alaska
Department of Environmental Conservation to perform an analysis
of the budgetary impacts of an Alaska region EPA office, they
projected a modest savings to the taxpayer. I ask that the
materials related to the cost be included in the record at this
time.
Senator Smith. Without objection.
Senator Murkowski. Thank you, Mr. Chairman.
I want to leave you with just a few examples of what
happens when good intentions in the EPA Seattle office go awry
in Alaska. In the regulation of mining operations, EPA sought
to require operators to reduce arsenic discharges to a level
below, below the naturally occurring ambient levels. They were
apparently unaware that the high level of mineralization in
many areas of Alaska caused some streams to have naturally high
levels occurring of contaminants associated with arsenic.
If you fill your canteen from a stream and later dump the
portion you did not drink back into the stream, you're
violating an EPA standard.
Here's another example. When EPA insisted that Fairbanks,
which happens to be my hometown, uses MBTE as an oxygenate for
motor fuels, nobody really understood what happened when MBTE
volatized in extremely cold air inversions, such as our 40
below zero temperatures, exposing humans directly to the
chemical. Well, let me tell you what happened. People started
to get sick, complaining of headaches, nausea and dizziness.
I've had pictures of some of these people, and you can readily
see the reaction.
For far too long, EPA's distant Seattle office regarded the
health complaints of Fairbanks residents as little more than
grumbling of a few crackpots and refused to grant a waiver.
Many months later, after being confronted with hard evidence of
sickness, EPA did grant a waiver. How much more quickly that
waiver might have been done and how many fewer Alaskans might
have not gotten sick if EPA had a regional office in Alaska.
Well, today, Fairbanks is a non-attainment area for carbon
monoxide by virtue of the arctic air inversion that occurs
several times a year. Seattle has never experienced a true
arctic air inversion and never will. So it doesn't surprise me
that the EPA regional office hasn't come to terms with the best
way to help Fairbanks solve its problems. Instead of
considering the unique situation that Fairbanks is in, the EPA
started the sanction clock.
Well, in Nome where I visited this last weekend, in the
village of Elg, the EPA wants the smokestacks in Nome on the
power plant to be raised to better dissipate emissions. Now,
according to the Federal Aviation Administration, doing so
would interfere with the landing patterns and require costly
realignment of the runways at Nome's airport, which would
largely be undertaken at Federal expense.
Is this a cost-effective solution? Well, of course not. But
it's easy to see how this can happen if EPA is sitting in
Seattle, calling shots without coordinating with the FAA which
has its regional headquarters in Anchorage.
Another example, and this is relatively humorous, is the
Anchorage waste water treatment plant. EPA requires both
primary and secondary treatment waste water to address elevated
levels of biological oxygen demand, that's BOD, a measure of
microable activity in waste water. When Anchorage only had
primary treatment, the tidal action of the inlet, that's 30
feet of tidal action twice a day, some of the most extreme in
the world, I might add, next to the Bay of Fundy, coupled with
the low BOD levels in Anchorage waste water, argued against the
need for expensive secondary treatment to lower the BOD
readings.
But the EPA determined that Anchorage still needed
secondary treatment, notwithstanding the low BOD reading and
the tidal action of the inlet. In order for Anchorage to have a
sufficient amount of BOD to address, it contacted a fish
processor to dump some fish waste into the discharge to raise
the BOD of the effluent, in order that the secondary treatment
could lower it.
In Fairbanks, we had an occasion where the bus barn, where
they park the buses, they were removing the snow, putting them
in the back area and the back area was determined to be a
wetland. The placement of the snow in the wetland was a
violation of EPA regulations. Those came out of Seattle as
well.
So in conclusions, Mr. Chairman, I would ask this committee
to move our legislation that directs the establishment of an
Alaska region. Because again, many of the activities are unique
to Alaska. For example, we're the only State in the Union with
permafrost. We have about 70 percent of our State covered with
permafrost. The uniqueness of that with any activity associated
with oil, gas and mineral exploration is indeed unique. We have
the dynamics of scouring ice on our coastlines, and the
realization that we're attempting to build pipelines to develop
oil and gas.
These are all unique to no other region but Alaska. And as
a consequence, to the concern from my friend from Montana, who
is concerned legitimately about why Alaska, I would simply
refer to the other agencies that have seen fit, because of
their stewardship responsibility and uniqueness of our State,
that it's much more effective and more practical to have an
agency in our State. It reduces the transportation costs of
people traveling 1,200 miles almost on a continuous basis and
provides the expertise where it belongs in the area where the
development is concentrated.
I'd be happy to respond to any of your questions, and
again, I would encourage your favorable consideration.
Senator Smith. Thank you very much, Senator Murkowski.
I just have one question. It may be better put to
Commissioner Brown or Director Freeman, and I can ask that when
they come up. But as I read the Reilly order in January 1993,
just prior to President Bush leaving office, it says,
Reilly responding to President's Bush's order, it's hereby
ordered,
and then the second paragraph of that,
that the transfer, reassignment of resources and designation of
regional office and regional administrator, the determination
of records, property, personnel, positions and unexpended
balances of appropriations that relate to the functions
transferred, reassigned, etc., to the regional office in
Alaska.
I guess I would be interested in what transpired in Alaska
once that happened. I'm assuming that after that order was
signed, the anticipation was that you were going to have a
regional office. Yet, when President Clinton came in, that was
not executed.
Did something happen in Alaska? Were decisions made? Were
preparations made to open offices or to do things in
anticipation based on that order?
Senator Murkowski. Well, there was nothing extraordinary
that happened associated with the order. Senator Stevens and I
lobbied the effort through the previous administration and very
frankly, it just got lost in the dying days of that
administration and was never effected. I'm not aware of any
particular incident. I think there were a lot of priorities, as
there usually is when an administration is about to go out. And
this one fell in the crack.
I guess I have no explanation for why.
Senator Smith. I don't have any further questions. Do you,
Senator Baucus?
Senator Baucus. Just a couple, Frank, and I understand the
concern, believe me. Some of the agencies you mentioned have
field offices, not regional offices, in Alaska. In addition,
they're basically land resource agencies which have a little
bit different mission than the EPA.
But I guess the main point, the main question here
obviously is, is responsiveness and balance. Those are the two
most salient questions here. To me, it's not easy. For example,
in Montana, we have the largest Superfund site in the Nation.
Senator Murkowski. The largest what?
Senator Baucus. The largest Superfund site in the Nation,
by far. We don't have a regional office in Montana. There's a
State office which deals with it. There is a little bit of
tension, as one would expect. My guess is there would be
tension even if there were a regional office in Montana.
Because obviously the issues are Federal and State, regardless
of where the regional office is.
We also in Montana have a huge asbestos problem. A couple
hundred people have died. Several hundred are infected by
asbestosis, or mesophilioma, or some form of asbestos-related
disease. It's huge. This is a massive problem that's affecting
not only Libby, MT, but many parts of this country.
EPA has sent to Montana, to Libby, several personnel. They
have done a terrific job, EPA personnel. The people in Montana,
Libby, MT, particularly, have nothing but praise for EPA, the
way EPA has handled this. EPA has sent a very good person,
onsite person, his name is Paul Paranard.
I've got to tell you, I wish that everybody in the country,
who sometimes criticizes the Federal Government, would meet
Paul Paranard. This guy is one of the most special persons I've
ever met in any capacity anywhere. He's a basic, down to Earth
kind of a guy. We had a hearing there just last week. This is
typical of Paul. He comes in his jeans and kind of a black tee-
shirt. He's got a ring in his ear. He's just a basic guy, but
he is so smart. He is so responsive, he listens so much to
people and he's moving things so quickly.
We've got a couple sites that are already on the schedule
to be cleaned up in a very short period of time since he's been
there. One's a nursery, a tree nursery, another is a lumber
yard. The main point being that there's no magic formula here.
Sometimes EPA is handling things quite well and sometimes it's
not.
But the only point I want to make is, in this case, EPA is
handling a very, very, very difficult State and national
problem without a regional office in Montana. People are OK,
they're happy. It's just a slight concern that my folks in
Montana are going to think, ``Well, gee, Alaska gets one, why
don't we in Montana.'' I'm going to run into that in spades. As
I mentioned, there are just lots of EPA issues in Montana. I
mentioned just two. There are many, many others. EPA is very
prevalent in Montana.
There's also a slight question, that has to be raised, by
looking at the various regions. You know, Florida is not very
much like Kentucky, yet EPA handles both. One could argue
Florida should have its own regional office. Maybe Kentucky
should have its own regional office. Same thing with the region
that includes Texas, Louisiana, and I think New Mexico are in
the same region. Some people in Louisiana may think, gee, our
State's a lot different than New Mexico, and vice versa. Why
shouldn't we have our own regional offices?
I guess the only point I'm making is I very much sympathize
with what your concern is, because Alaska is considerably
farther away. But I don't know that necessarily, a regional
office is going to solve the problem here. It's really kind of
a guess as to what the problem is. If the problem is the way
EPA is administering the statutes in Alaska, there are ways to
skin that cat, have hearings in Alaska, as I've had in Montana.
Lots of EPA hearings in Montana. And I call EPA personnel, they
come to Montana. It's very good for them, it's very good for
us. And it works.
So all I'm saying, Senator, is I deeply, deeply appreciate
your concern. But I don't know that it's necessarily the right
public policy for the country. But I certainly will listen to
the testimony very carefully.
Senator Murkowski. Well, thank you. Obviously, I don't have
much time left to convince you. But I would like to remind you
that all the Interior offices, the BLM, the Park Service, are
full regional offices, with a full regional administrator, I
might add. Forest Service, full regional offices. They are not
sub-regional offices.
I've been criticized in my State for, as you know, the EPA
is not necessarily the most popular agency in many regards.
They have a job to do, and I've been criticized for suggesting
that there should be a regional office in my State. I
understand and appreciate that criticism, but the reality is
that we live under the law of the land. But if the law of the
land is interpreted in an environment that is substantially
removed from the circumstances associated with the uniqueness
of our area, you spoke of your concern over your Superfund
site. You spoke of your concern over asbestos problems.
It's my hope, as you know, we became a State in 1959, we're
relatively new. It's my hope that by having the EPA establish a
regional office, we will not be confronted with the problems
associated in your State or other States that have Superfund
sites.
Now, the uniqueness is the technological application
associated with a 65 percent of the area's permafrost. You say
you can do the same thing in Kentucky that you can do in
Florida relative to an EPA region. But our State's the only one
with permafrost. Our State's the only one producing volumes of
oil. And like any other area, only the uniqueness is it's not
like Texas, it's in the Arctic. The engineering technology is
entirely different. The movement of ice on our coastlines, we
have scouring. How do you put--these are all unique to Alaska
and as a consequence, I think, deserve consideration.
We talk about the role of EPA in Alaska. It's a developing
role. We spent $9 billion, the largest construction project in
the history of North America, was that oil pipeline. Senator
Baucus, you were here, you were aware of what was going on.
Senator Baucus. I was up there twice.
Senator Murkowski. Yes. It was one of the more significant
engineering events ever to occur. We're talking about putting a
gas line in. We're talking about $10 billion to $14 billion.
These are things that are not happening anywhere else in Region
10. They're going to happen in Alaska. Justification for EPA is
to ensure that we don't have happen in Alaska what happened in
Montana.
Senator Baucus. What--wait a minute. Whoa, Senator----
Senator Murkowski. I'm talking about your Superfund site,
I'm talking about your asbestos.
Senator Baucus. No, no.
Senator Murkowski. If we have EPA in our State managing, we
won't have these problems.
Senator Baucus. Frank, in all respect, that's irrelevant.
Because, because----
Senator Murkowski. Well, history has a way of repeating
itself. What comes around goes around.
Senator Baucus. I'm just saying, the asbestos problem, the
problem there is, we found the problem, and EPA is doing a
great job at managing the cleanup.
Senator Murkowski. I'm sure they are. We want EPA to do a
great job in our State as well.
Senator Smith. I think one other point that needs to be
made, too, this is not simply the case of a Senator making a
request for something in his State. This has gone through the
legislative process, has gone to the President's desk for
signature, although it was not a mandatory action. Then it was
supposedly implemented and has not been. We will hear from the
next panel as to perhaps why that would be the case.
In any case, we can all agree that William Seward made a
good investment, otherwise we'd be dealing with the Russians
now.
Senator Murkowski. Well, we're ready to buy it back any
time. Thank you, gentlemen.
Senator Smith. Thank you.
If the next panel would please come up. The Honorable
Romulo Diaz, Assistant Administrator of Administration and
Resources Management, EPA; The Honorable Michele Brown,
Commissioner, Alaska Department of Environmental Conservation;
and Mr. Ken Freeman, the Executive Director of the Alaska
Resource Development Council. Welcome. We're glad to have you
here.
Let's start with Mr. Diaz. Your comments will be made part
of the record, and if you can summarize in a few minutes, we'd
appreciate that.
STATEMENT OF ROMULO L. DIAZ, JR., ASSISTANT ADMINISTRATOR FOR
ADMINISTRATION AND RESOURCES MANAGEMENT, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Diaz. Thank you, Mr. Chairman.
Mr. Chairman and members of the committee, I am Romulo L.
Diaz, Jr., EPA's Assistant Administrator for Administration and
Resources Management. I am pleased to appear before you to
present the Agency's views on S. 1311, a bill to create a
separate EPA region for Alaska.
I would like to begin by providing a brief history of the
efforts to establish an eleventh EPA region in Alaska. In 1990,
then-Governor Walter Hickel called upon the EPA Administrator,
William Reilly, to create a separate regional office for
Alaska. In response to the request by the Governor and Senators
Stevens and Murkowski, as well as the concerns expressed by the
delegations of potentially affected States, EPA undertook a
study of the ``Implications of Establishing a Regional Office
in and for Alaska.''
This study, which was completed in 1992, concluded that the
proposed new region would not be cost effective and outlined
alternative approaches to meeting the concerns of Alaska's
elected officials. In January 1993, then-President Bush signed
a memorandum ordering Administrator Reilly to establish Region
11. On January 20, 1993, Administrator Reilly signed an
administrative order establishing the new region, subject to
implementation steps necessary for such a reorganization.
Following careful consideration by the incoming
administration, EPA believed that the concerns expressed by
Alaska officials, industry and environmental groups,
particularly in light of the 1992 Alaska study, could be more
effectively and efficiently satisfied through a variety of
other means. These included better collaboration with the State
in developing program priorities, improving program delivery
strategies, and better deployment of EPA resources in the
State.
Let me review just a few of the ways that EPA today
demonstrates its commitment to one of this Nation's most
geographically diverse areas. EPA's Alaska operations office is
unique among EPA's State organizations. With 39 employees, it
is the largest of any EPA State-based operation and is
responsible for on-the-ground implementation of EPA programs in
the State. In addition to administering some programs directly,
the Operations Office provides technical assistance to help
State, local and Tribal governments in administering delegated
programs.
An essential element to EPA and Alaskan cooperation is the
2-year partnership agreement that integrates federally-funded
programs administered by EPA with related programs funded by
the State and by other Federal agencies. The recently revised
agreement contains mutually determined priorities to achieve
environmental goals and gives the State maximum flexibility to
address its specific needs while maintaining a core level of
environmental protection.
Let me just give a few examples to illustrate this
flexibility. In light of the State's unique geographical,
meteorological, air quality and economic factors, EPA has
granted Alaska an exemption from meeting the current sulfur
standard for highway diesel fuel. To help Alaskan rural
communities, EPA has provided in excess of $100 million since
1995 for construction of drinking water and wastewater
facilities. In addition, a Rural Sanitation Coordinator and
staff in the Alaska Operations Office works directly with
Native Villages and with State agencies to provide rural
sanitation services.
EPA and the Corps of Engineers have worked to develop a
wetlands permitting process that takes into account the State's
highly diverse environmental, economic, and geographical
conditions. The Operations Office director is authorized to
approve wetlands permits for Alaska, which is itself unique
within EPA.
A number of measures point to the success of EPA's efforts.
For example, major NPDES permit backlogs for municipal
discharges, mining, pulp and seafood operations have been
reduced from 69 percent in 1996 to 21 percent in March 2000,
and are expected to be further reduced by the end of this
calendar year. Over the past 7 years, EPA has listened to the
concerns expressed by Alaskan officials. Although there is
always room for improvement, much progress, we believe, has
been made, and we remain committed to addressing Alaska's
unique needs in cost-effective ways that recognize
environmental and public health needs.
On behalf of the Environmental Protection Agency, I pledge
that we will continue to work with this committee as well as
the State of Alaska and others to consider additional cost-
effective ways to better serve the environment and the people
of Alaska. Thank you for the opportunity to appear before you
today, and I'd be pleased to answer any questions you might
have.
Senator Smith. Thank you, Mr. Diaz.
Commissioner Brown, welcome.
STATEMENT OF MICHELE D. BROWN, COMMISSIONER, ALASKA DEPARTMENT
OF ENVIRONMENTAL CONSERVATION
Ms. Brown. Thank you, Mr. Chairman, Senator. I am Michele
Brown, Commissioner of the Alaska Department of Environmental
Conservation. On behalf of Governor Tony Knowles, I thank you
for allowing me to come here and state the State of Alaska's
support for the bill before you.
Alaska is not just our treasure, it's a national treasure.
You have participated in the debates over opening the Arctic
National Wildlife Refuge and the timber harvest levels in the
Tongass National Forest. There is great passion in those
debates, as you certainly experienced. That's because Alaska is
a proud symbol of environmental purity for America. It should
also be America's model for environmental management. Yet the
Federal agency charged with environmental management has only a
meager presence in Alaska.
A lot has changed since 1970, when the EPA regional
structure was set up. We were only 10 years into statehood
then. A lot has changed since then. Today, our issues range
from addressing Third World sanitation conditions in hundreds
of inaccessible villages to regulating the country's most
complex oil development, transportation and production system,
one which yields 20 percent of the domestic oil production.
The issues range from protecting the water quality of our
massive coastline that produces and processes over 50 percent
of the U.S.'s seafood while regulating the discharges from the
U.S.'s largest zinc and silver mines and the highest production
placer gold and tin mines. Issues range from generating
electricity from diesel engines, because there is no other
available power source for all of our villages and most of our
industrial activity, while assuring air quality for two-thirds
of the U.S. national parklands, the largest State park system
in the United States and the largest U.S. national forest.
We also have to do this while we preserve the vistas and
the fresh air quality for the millions of tourists who visit
Alaska every year. All this needs to be done over a land base
that's 20 percent of the United States.
There's a map in your packet that shows the State of Alaska
superimposed on the rest of the country and the blue is Region
10. As you can see from this map, we extend from the Canadian
border down to southern California and from Tennessee to Texas,
even not including the chain.
Senator Murkowski has given you a lot of the overwhelming
statistics about our size and complexity. I would just like to
mention in addition that we share no border with another State,
and at our closest point, we're 2\1/2\ miles from Russia.
As Senator Murkowski pointed out, virtually all the
pertinent Federal agencies do have regional offices in Alaska,
and those are not just land management agencies. They're also
those that have regulatory protection programs, such as NOAA,
the Corps of Engineers and MMS. It's EPA alone that tries to
provide this management from Seattle with a core and small
staff in Alaska.
I'm not here to criticize EPA. We have worked on a number
of issues productively. But I'd like to highlight a serious
problem in allocation of resources and attention. I'd like to
give you four brief reasons why I think the current regional
structure isn't working, and some examples. First, is Alaska's
environment needs more effective management. Despite efforts by
Region 10 to be responsive, we've seen that managing for
results isn't working from the Seattle office. EPA's Alaska
office is a minimal presence and does not really have a key
voice on issues. My staff and I spend 90 percent of our time
dealing with either Seattle or Washington, DC, on our key
Alaska issues.
The performance partnership agreement has unfortunately not
been a big success in Alaska, and we've had a very hard time
reaching a meeting of minds on priority of issues. Seattle
staff, despite their best efforts, often do not understand the
conditions in Alaska. Lacking any sense of the big picture of
all the issues there, they merely tackle what shows up on their
desk. Lacking an understanding of the on-the-ground conditions,
they adhere to one-size-fits-all solutions. This can often lead
to a lot of time and energy without producing environmental
results.
I would like to give you one example. Thousands of
migratory birds are dying year after year in a wetlands estuary
just outside of Anchorage. It was contaminated by the Army's
use of phosphorus in its weapons. Two-thirds of Alaska, by the
way, is owned and managed by the Federal Government. Much of it
does have residual contamination.
But EPA, the fellow Federal agency with the clout to
address this, isn't working on this issue. Instead, less than
15 miles away, the Anchorage sewer treatment plant that Senator
Murkowski mentioned, we've been going through 3 years of
paperwork to try to renew its permit, because there is some so-
called pollution in the discharge.
Well, that pollution is due to trace metals and high
sediments from naturally occurring conditions from glacier
runoff. So although we've spent countless hours on this permit,
we're not going to see any improvement in water quality when
it's said and done. But the wetlands issue just up the road is
being ignored.
Senator Murkowski mentioned to you the situation we had
with the arsenic standard. Although we were able to address
that, I'd like to point out it took 4 years to address that.
Many large and small mines were delayed while that was being
addressed. The ones that were able to proceed had to spend an
inordinate amount of money with paperwork to be able to proceed
in light of this unreasonable standard.
The point in this particular issue is that we want and we
need effective management. We don't want relaxed standards. We
don't want to escape from requirements. But we also don't want
to go through a lot of pointless exercises that aren't bringing
about environmental improvements.
The second reason is that we believe EPA's investment in
Alaska's public health infrastructure needs to fit arctic
conditions, not the conditions in the rest of the country. EPA
has a large role in our rural public health infrastructure.
This infrastructure is very difficult, because there are no
roads between the villages, transportation corridors are only
available when the rivers aren't frozen, and the system's
design and operation must meet extreme arctic engineering
requirements.
EPA has been very supportive in terms of funding, but its
numerous management requirements and funding requirements need
more attention to Alaska's specific conditions. They also need
to integrate this effort with the other Federal agencies that
are working in this field. We need a master plan where housing
development, energy improvements, sewage lagoons and water and
sewer systems are all coordinated, so that you don't have
different pieces of a system being built in different villages
at the same time.
All of those other agencies working in this field have
positions in Alaska, have regional offices in Alaska, EPA does
not.
The third reason is that tribal relations in Alaska are
very complex. We have a cultural diversity unlike any other
area, 17 percent native population with 5 distinct groups. We
have unique government to government relationships. Because one
half of the tribes in this country, 228, are located in Alaska.
Yet only one has a reservation land base.
EPA is developing government to government tribal policy
out of Seattle in a way that may make sense for tribes with
reservations, but is very difficult in Alaska. For instance,
EPA has provided construction funding to help fill, this will
illustrate both the last two points, they provided construction
funding to help fulfill the desperate need for safe drinking
water systems for thousands of public water systems that serve
very small communities. The average income in these communities
is $13,000. There's no real good economic base.
Once a system is built, it has to be owned and operated and
managed by a local government, a tribal entity or a non-profit.
That's hard enough to do in this economic structure under the
best of circumstances. But it's made much more difficult when
EPA requires that there be constant testing for contaminants
that have never been found in Alaska, or where we have to
repeatedly fly samples to a lab because arbitrary sample
holding times cannot be met due to weather or distance in
flying the samples.
The situation is even further complicated when EPA's tribal
office passes funds to tribal entities to begin development of
new water systems. These are in communities where often there
is a local government already struggling to operate a water
system, and the result is you have two water systems competing
for ratepayers in a town of a couple hundred people.
The fourth and final reason I'd like to raise to you is
that arctic contamination is becoming a serious threat to
Alaska's ecosystem and the people who rely on those resources.
The Arctic is a sink, and it's capturing chemicals coming from
Russia and Asia. Heavy metals and persistent organic pollutants
are concentrating into the Arctic, and they persist longer in
the Arctic. These chemicals accumulate in the ecosystem and in
particular in the fatty tissue in animals. They are threatening
subsistence food, the seafood trade and traditional ways of
life.
EPA is participating in this arctic research and
contamination management, but in a very fractured and
uncoordinated fashion. Having a regional focus on this issue
would greatly assist the State Department as it develops
treaties on these contaminants.
I know that although we can give you good reasons for why
there should be a region, it has to be cost effective, and it
cannot reduce the resources available to other States. Given
the analysis that EPA prepared the last time around, we believe
that a thoughtful and gradual transition, especially one that
focuses on a core task analysis, could basically use Alaska's
proportionate share of Region 10 resources and not hurt the
other Region 10 States.
Senator Baucus. Mr. Chairman, I've noticed the red light's
been on about 5 minutes, and I have to leave this somewhat
soon, and I'd like to listen to the other witnesses, just so we
have an expeditious hearing.
Senator Smith. Go ahead and finish.
Ms. Brown. I'm sorry.
I just want to say, we want and need a true partner to help
us manage Alaska's resources and America's national treasure.
Thank you.
STATEMENT OF KEN FREEMAN, EXECUTIVE DIRECTOR, RESOURCE
DEVELOPMENT COUNCIL
Mr. Freeman. Mr. Chairman, Senator Baucus, thank you. Good
morning. For the record, my name is Ken Freeman. I serve as
executive director of the Resource Development Council for
Alaska, commonly known as RDC.
I'm here today to express RDC support for S. 1311. RDC is
an Alaska statewide organization consisting of all resource
sectors including oil and gas, mining, fisheries, tourism and
forestry. Our membership also includes business associations,
labor unions, native corporations, local governments and
hundreds of individuals. Our purpose is to encourage a strong,
diversified private sector in the State and expand our economic
base through the responsible development of our natural
resources.
Historically, RDC has supported the creation of an EPA
regional office focusing exclusively on Alaska, and there is
consensus among our members on the merits of establishing an
EPA region specific to our State. Alaska has always provided
unique challenges for both industry and regulators, because of
our vast physical dimensions and our uniqueness. I won't go
into detail, Senator Murkowski and Commissioner Brown, I think,
gave you an idea of how large the State is and how different we
are. But special circumstances truly do present special
problems that demonstrate the need for an EPA region for
Alaska.
Oil production from Alaska accounts for nearly 20 percent
of all the oil produced in the United States, as Commissioner
Brown mentioned. Yet Alaska is the only State within the EPA
region that has oil and gas exploration and production. Given
the importance of Alaska oil to the Nation's energy security,
it's imperative that agencies have an in-depth understanding of
oil and gas exploration and production operations.
Specifically, operations conducted in extreme arctic
conditions.
Although Alaska is large in size, its small population and
industries, and as such, the focus of Region 10 employees'
expertise oftentimes is on industries and conditions in the
Pacific Northwest, not on upstream oil and gas operations and
certainly not on operations conducted in extreme arctic
conditions. While EPA does have much appreciated staff based in
Anchorage, decisions vital to Alaska's environment and economy
are largely driven by Region 10's Seattle headquarters.
A good example of why a new Alaska EPA region is needed
comes from the timber industry. At issue is recent permitting
for a general permit on log transfer facilities known as LTFs.
There was a huge and unnecessary amount of time that was
required to work through this process. Region 10 regulators
from Seattle do not fully understand the unique challenges
proposed by the remoteness of Alaska, or the isolation of the
LTFs. Regulators requested street addresses and towns of the
LTFs, they asked for road directions to the sites. They didn't
understand that these facilities were located far from local
communities, that there were no roads, no services, no
infrastructure, just remote isolated wilderness accessible only
by aircraft or boat.
It took permittees months to get all the logistical issues
resolved, and the permittees noted that Region 10 regulators
shows little trust for those in Alaska they were regulating,
and did not have a reasonable understanding of sense of
magnitude of Alaska, its remoteness or unique circumstances.
A current issue making headlines in Alaska is the State's
rights in respect to its air permitting program. Alaska cannot
administer a viable air permitting program if EPA Region 10's
office in Seattle continues to summarily overrule carefully
made decisions that take into account Alaska's unique
circumstances. The Alaska Department of Environmental
Conservation has appealed a recent order by EPA prohibiting the
issuance of prevention of significant deterioration permits,
known as PSDs, for a diesel generator at the Red Dog Mine in
northwest Alaska. This permit is vital and necessary to Komiko,
Alaska's operations at this, the largest deposit of zinc in the
world. The generator will have a negligible environmental
impact.
DEC has an EPA-approved State program for issuing these
types of permits. This approved program gives DEC full
permitting and discretionary authority over the PSD permits for
the State of Alaska.
Our members across Alaska from resource developers to local
communities need to be able to rely on DEC's decisions on air
permits and be able to proceed based upon those decisions. The
EPA Region 10 action at Red Dog is alarming because of the harm
it may cause our members in planning for new or modified air
permitting to meet their needs. Permittees unsure of the
reliability of the State's process will wonder if EPA's Seattle
office can nullify a permit at any time, thus delaying projects
until appropriate authority has been defined.
If EPA has the authority to summarily overrule DEC's permit
decisions and demand additional measures beyond what has been
determined sufficient, then our members in effect would be
forced to permit their project a second time through EPA. I
don't believe this is the goal.
This issue is not only a battle between agencies on Clean
Air Act jurisdiction, but it shows once again how a distant EPA
office does not fully understand Alaska's circumstances. The
Red Dog Mine sits in complete isolation, far removed from any
community. It is not connected to Alaska's road system, and
there are no air quality concerns, especially given its
location.
A new Region 11 office could go further than a local branch
office with limited latitude, staffing and capabilities in
overcoming these challenges and developing a much needed
northern arctic expertise and wetlands management, permafrost,
ice fog, NPDES permitting, background levels of metals and
other issues. A Region 11 office could better respond to
Alaska's special problems with Alaska's solutions, and the
establishment of an EPA region specific to our State would be a
major step toward achieving the goal of ensuring that Federal
regulations applied in Alaska reflect Alaska realities.
Concluding, I would just like to commend Commissioner Brown
and the Alaska Department of Environmental Conservation. I
think what we have in Alaska is an agency that aggressively
works to protect the environment, but at the same time, does
allow flexibility in the regulatory regime through zones of
deposits, mixing zones and site specific criteria. This is, I
think, a great example of a State agency that works well with
industry, and again also stringently protects the environment.
I think at the end of the day, it would be great to have an EPA
regional office that could respond in the same way.
Thank you, Mr. Chairman, Senator. I would be pleased to
respond to questions.
Senator Smith. Thank you very much, Mr. Freeman. I know
both you and Ms. Brown traveled a long way to be here, and we
appreciate your testimony.
Let me start with you, Mr. Diaz. On the issue that we've
all discussed already about the Presidential order to
Administrator Reilly in mid-January, just prior to President
Bush leaving office, it's my understanding that OGC, the Office
of the General Counsel, has told the Administrator that
reversing that order would require the written approval of the
President. Is that EPA's position?
Mr. Diaz. I don't know what the Office of General Counsel
might have stated to the Administrator on that particular
point. But I think the situation as I have been advised by the
Office of General Counsel at EPA is that the order by both the
President and former Administrator Reilly were not self-
executing, that there was not a legal obligation for the
implementation of those decisions.
Senator Smith. Right. But is it the EPA's position that the
President, that it would take the written approval of the
President not to execute it? Is that the EPA's position, yes or
no?
Mr. Diaz. The position of the agency is that they were not
self-executing, that we were not under an obligation to
implement them. Technically, I understand that those actions
remain on the books and have not been rescinded.
Senator Smith. President Clinton has never revoked the
order, has he? He's never revoked the Reilly order?
Mr. Diaz. To the best of my understanding, the Reilly order
has not been rescinded. But I think it's important, Mr.
Chairman, that we focus on the fact that the priorities that
were raised at the time to Administrator Reilly and to
President Bush by the Alaskan officials and by others including
environmentalists, and the Pacific Northwest delegation
members, have been addressed in terms of the priorities
established to meet the needs of Alaska.
Senator Smith. OK, but I'm just trying to clarify where we
are here. It's my understanding that the Office of General
Counsel has told the Administrator of EPA that in order for
that order not to be implemented that the President would have
to so indicate, in other words, he would have to have his
written approval, the President would have to issue his written
approval of that order. That is, as I've understood, is the
position of the Administrator.
Now, as I understand it, President Clinton has not revoked
that order. He's not taken any formal action to revoke what
happened, yet he's not implemented it either. So he's not done
either.
Mr. Diaz. Let me, if I may, Mr. Chairman, try to be a
little bit more direct.
Senator Smith. Who made the determination not to implement
the order? Who indicated? We had an order, President Clinton
takes office in January 1993, he's got an order before him to
create Region 11. All I'm asking you is, who made the
determination not to implement it? President Clinton never made
a written approval or disapproval. So who issued the order not
to implement the action of the President and the former
Administrator?
Mr. Diaz. To the best of my knowledge, no order was issued
indicating that the Reilly administrative order not be
implemented. The information, the counsel that I have received
from EPA's Office of General Counsel, is that we were not under
an obligation to implement the decision by President Bush or
Administrator Reilly. Technically, those decisions remain on
the books. They have not been rescinded.
But we have not, I'm not aware of any counsel by the EPA
Office of General Counsel which suggests that we have an
obligation to implement in the absence of a decision to
rescind.
Senator Smith. Well, OK, I don't want to argue it. But I
want to get clarification on that. Because it's my information
that OGC has told the Administrator that reversing the order
would require the written approval of the President, written
approval of the President. The President has in effect reversed
the order, because he hasn't implemented it. That's been 7
years ago.
So I just want to get for the record somewhere some
clarification on what OGC said or didn't say. But it's my
understanding that they've told the Administrator, I don't know
if there's a document so indicating or not, and if they have,
then the President needs to either implement this or rescind it
by some written document. To the best of my knowledge, that has
not been done. Neither has been done.
So basically he's ignored the act of Congress and the law.
Mr. Diaz. I think, Mr. Chairman, we have met the priorities
that have been raised to the agency's attention with regard to
the concerns of Alaska. But I would be pleased to provide for
the record information with regard to the question that you
raised.
[Additional information follows:]
A June 23, 1993 document supplied to the committee
entitled, ``Region XI Approaches to Closure,'' states in the
Background section, ``The 12th floor has been told by OGC that
reversing the order establishing Region XI will require the
written approval of the President.'' The Office of General
Counsel (OGC) did not prepare the June 23, 1993 document. OGC
has been unable to locate any memoranda which would verify the
advice represented in this June 23, 1993 document. After
informally consulting with the Office of Legal Counsel (OLC),
Department of Justice, it is OGC's understanding that only the
President can rescind a Presidential memorandum but that it
does not have to be rescinded in writing.
Senator Smith. Yes, I would like that clarified. Thank you.
Mr. Baucus.
Senator Baucus. Thank you, Mr. Chairman.
First, I might say with respect to the orders, there are
other documents and there are other statements of documents
that frankly cloud the whole issue here, and that could be
probably be brought out at a later time. But it's not as clear
as has been somewhat indicated here.
Ms. Brown, you've heard Mr. Diaz say all the things EPA is
now doing to help. He listed some things, better collaboration,
exemption of the sulfur diesel fuel, he mentioned the $100
million water facilities, wetlands permits for Alaska only, and
I forgot something that was delayed, the 69 percent down to 29
percent lower rate, I mean, is that accurate? Is it better?
Your reaction and Mr. Freeman's, just general reaction to the
progress and the cooperative efforts that EPA has made.
Ms. Brown. Thank you, Senator.
We have had good cooperation with EPA. But it requires a
lot of work. We have to elevate issues to the senior management
to get the attention, because staff----
Senator Baucus. Now, when you say senior management, what
level?
Ms. Brown. Of Region 10. What Alaska would like is not to
be in the position of having to seek exemptions and waivers for
things that don't make sense, but to be part of the initial reg
making process, so that alternative compliance, if it's
necessary, so that we achieve the same goal but through a
different way, can be worked out in the course of the regs,
rather than seeking exemptions later or coming even before you
to look for exemptions. We think it would be a lot less time
consuming and a lot more productive if we could get those
issues resolved sooner rather than later.
Senator Baucus. Mr. Freeman, do you have a reaction to what
Mr. Diaz said?
Mr. Freeman. Thank you. I think most of our members have a
very good working relationship with the EPA officials in the
State of Alaska. But unfortunately, most of the time, the
decisions are made in Seattle. I think Commissioner Brown
brought up an interesting point when she mentioned that nearly
all of her time and staff's time deals with the Seattle office.
I think that this is clearly an indication that the majority of
decisions are made in Region 10.
I think EPA has done a lot. But I don't think anything
could be done other than having a Region 11 that would really
get to the heart of the issue here.
Senator Baucus. Well, I must say that we have the same
problem in Montana, that, often, when you want something done,
you've got to go to Denver, you've got to go to the regional
office. I do it myself, I just call up Denver. I appreciate
that and I understand that.
I don't know if that necessarily solves the issue before us
here, because one could say, ``Gee, there should be a regional
office in Anchorage or Fairbanks or wherever so you don't have
to go so far.'' On the other hand, every State could make that
argument, too, as we in Montana face the same situation that
Alaska does.
Mr. Diaz, I suppose one possible solution here is more
delegation of authority to the various States divisions, rather
than, from the regional office. You have heard their
testimonies. What about it? It sounds like sometimes EPA is not
as responsive as it should be.
Mr. Diaz. As I said, I think, in my opening statement,
there are certainly areas where I think we can always make
cost-effective improvements. But the reality is that the
delegations and the authorities of the Alaska Operations Office
are real, and as I mentioned, a particular example, we're
unique in the EPA system, the Alaska Operations Office director
is authorized to sign wetlands permits and to initiate any
raising of concerns about those permits on his own volition.
That is unique within EPA.
Senator Baucus. I suppose that helps? It doesn't solve the
problem, but I suppose it helps?
What about the migratory birds dying, this 3-year delay?
I'm not very familiar with that issue, are you? Can you shed
some light on that?
Mr. Diaz. I am not personally aware of that issue. I
understand that there are concerns with regard to the waste
treatment facility. I'd be more than happy to take a look into
it and provide that information for the record.
[Additional information follows:]
migratory birds
Concern: Dead migratory birds were discovered at Eagle River Flats
and EPA has not acted to discover the cause.
Region X response: Eagle River Flats, north of the City of
Anchorage, is located on Fort Richardson Army Base Artillery Range, an
active artillery range. In the 1980s, dead migratory waterfowl were
discovered in the Knik Arm of Cook Inlet. There was no apparent cause
of death. EPA worked with other State and Federal agencies to determine
that the cause of death was white phosphorus from artillery rounds and
bombs that had been dropped since WWII. Once the agent was identified,
development of methods for clean-up and remediation began.
The fact that the range is active and contains many rounds of
unexploded ordnance presents the greatest obstacle to site clean-up.
Work has progressed with the development of remediation methods such as
a specially built armored dredge that can withstand a direct explosion
while dredging material contaminated by white phosphorus. The
``hottest'' spots containing white phosphorus have been or are now
being remediated, and the number of waterfowl deaths has dropped
drastically.
Senator Baucus. You mentioned, Ms. Brown, EPA requiring
testing for contaminants that don't exist in Alaska. Is that
pre- or post-1996? Because we changed, as you know, the Safe
Drinking Water in 1996 to hopefully deal with that problem,
which is a national problem, and that was a statutory problem,
more than it was a delegation problem. Are you talking about
problems that even exist with the reform of the Safe Drinking
Water Act and if so, could you give an example, please?
Ms. Brown. Yes, it does still exist. It's a number of
pesticides, in particular, that have never been used in Alaska
that we still have to test----
Senator Baucus. Oh, pesticides.
Ms. Brown. Yes. We were able to work out a waiver system so
that we could apply for waivers on behalf of the small
communities. But again, it was a labor intensive process to
deal----
Senator Baucus. What would happen if EPA would make a--
really go full bore, and say, ``Boy, we're going to show you
Alaskans that we really care, we're there?'' Now, there's a
Federal statute, and there's State concerns, local concerns. If
they were to do that, why wouldn't that solve the problem?
Because your argument is that you need a regional office for
that to happen.
Ms. Brown. Do you mean if they were to use the operations
office?
Senator Baucus. Yes, the operations in the current
structure.
Ms. Brown. Because where the management decisions are
happening are still in Seattle. That's where you have to go
through weighing all the other Pacific Northwest priorities.
The Alaska operations office can raise a point, but it tends to
get lost.
Senator Baucus. Yes, I guess there's no easy answer here.
This guy I mentioned, Paul Paranard, he is delegated immense
authority with this asbestos problem in Libby, MT. He's from
Denver. They sent him out. Probably because he's such a good
guy, they dispatch him other parts, you know, where he's
needed.
All I'm suggesting is that, I don't know, maybe you do need
a regional office, maybe you don't. But it just--so many of
these issues can be resolved just with a lot of cooperation and
good faith efforts on both sides. I do think, Mr. Diaz,
sometimes it is true that EPA, my experience in Montana, seems
a little distant, not really that cooperative, that seems not
to really care, show that extra effort in really trying to do
what's right, not to do just what immediately the local folks
want, but to work out the solution in a fair, practical, common
sense way that affects that part of the country.
My advice, for whatever it's worth, is to get more of your
people out, just to travel a lot more and meet a lot more of
these folks. You probably have a travel budget problem and so
forth. But it's, just having a regional office there might not
necessarily solve this problem.
I am not saying it's a huge problem. I'm always saying,
it's still there, to a degree. As I said, one major exception
is this guy, Paul Paranard. You've got to give him a huge
raise. This guy's aces.
Mr. Diaz. Might I respond, Senator Baucus? Clearly there is
a need to make sure that our folks are on the ground in Alaska,
which we have provided for. We also clearly need to let folks
in Alaska know that we are there from Region 10 as well. We
have a significant travel budget which is allocated to provide
for travel to Alaska. Yes, it has been pointed out that there
is a distance of 1,200 miles to the Seattle regional office.
But Senator Murkowski himself pointed out that when one takes
that in the context of the size of Alaska, that's only half of
the distance north to south in the State of Alaska.
I have also been advised that by veteran career folks in
the regional office in Seattle that the regional administrator
from Region 10, Chuck Clarke, has probably spent more time in
Alaska than any other regional administrator in recent history.
We have significant senior management attention to Alaska and
on the ground in Alaska.
Senator Baucus. Is it better? EPA sensitivity to Alaska?
Ms. Brown. I think it is better when we can get the
attention of the regional administrator. But I would have to
say on the travel issue, most of the time you see troops of
State regulators and facility operators going to Seattle to
meet with a regulator there, because they don't have the travel
budget to come up. So you'll have five, six Alaskans working on
an Alaska permit traveling to Seattle to visit with one
regulator who's never seen the facility.
Senator Baucus. With all that oil, you can't buy a few more
airline tickets?
Thank you very much, Mr. Chairman. Thank you all.
Senator Smith. Thank you.
I just want to follow up one more thing, Mr. Diaz. Then I
have a couple of questions for the other two witnesses.
Senator Baucus. Mr. Chairman, I've got to leave. I just
want to say that several environmental groups have an interest
in this bill. But because of the scheduling problems, they were
not able to testify. I just ask that the record be held open a
week for others to submit their testimony.
Senator Smith. We can hold it open until the end of the
week.
Senator Baucus. Thank you.
Senator Smith. Until Friday.
Senator Baucus. OK.
Senator Smith. Just one final point. I don't mean to put
you on the spot here, Mr. Diaz. I just want to get this
clarified. A document was provided to us, it's marked
privileged, but it's EPA work product, dating back to June 23,
1993, in which there is a discussion about this issue. I
realize it's work product and I'm not trying to say this is
policy. But one of the options was ``do nothing,'' referring to
acting on this issue. Do nothing, hope no one makes an issue of
it, if they do, deal with it then.
Also, going back to my original point to you, one of the
bullets here on these, in the background is, the 12th floor of
the EPA has been told by OGC that reversing the order
establishing Region 11 will require the written approval of the
President. So in your own documents, you're indicating that OGC
has told you that. So I would like that clarified for the
record, as to what OGC told you. Because that's what is in the
documents from June 23, 1993, which was at the time that this
matter was there.
So I mean, it's clear, based on if you read, and I'll make
the whole document part of the record, but it's clear that in
that document, that the discussion is obvious that EPA, the new
EPA, does not support the action, which is fine, they have that
right. But I think it is also important in my view that they
did not, to note that they did not pay attention to OGC's
recommendation, which is if that the President doesn't want to
do this, he should so indicate in writing, and then that would
at least, the folks in Alaska would at least, wouldn't be held
in limbo for 7 years wondering what was happening, and we
wouldn't need another piece of legislation.
Mr. Diaz. Might I respond, Mr. Chairman, very briefly?
Senator Smith. Yes.
Mr. Diaz. First of all, I believe I have seen that
particular document. Its origin is not clear. I don't know to
whom it was sent. I do take the point that the formal
rescission of the President's order, as well as the
Administrator's internal directive, need also to be formal.
Having said that, I would certainly be pleased to provide for
the record the information that you requested.
Senator Smith. Thank you very much.
Ms. Brown, just in response to what Mr. Diaz said, how
often are EPA officials from Seattle in your State?
Ms. Brown. We see the regional administrator probably
around three times a year, I would say. The operations people
are there presently all the time. But they work on primarily
programs that the State doesn't have delegated direct program
implementation. The things that we both have jurisdiction over,
we tend to work with Seattle on. The Region 10 staff does not
spend that much time traveling out of Region 10 to the State.
We have to go there.
Senator Smith. Your testimony was very good in defense of
having Region 11. But try to focus, if you can, and you can
answer as well, Mr. Freeman, if you like, what is your specific
complaint? That they're not knowledgeable, they're not there? I
mean, is it that they have to be on the ground right there all
the time to get a handle on this? I'm just trying to get an
idea from your perspective in Alaska just what the problem is.
I mean, you make the same argument I guess, that all of us
here in Washington, DC, don't know what's going on around the
country. We hear that all the time. But I'm trying to get a
handle on, I understand the size, when you put Alaska,
superimposed it over the map of the United States, we can see
the size, you can certainly make the case for sizes. I'm
frankly undecided on the legislation, I'm trying to make up my
mind. You did make a very forceful argument.
But again, what specifically is the concern? That they'll
have more knowledge if they're on the ground there, or you can
work with them better? I hear so many times in the other 10
regions, we're in complaints a lot, that the EPA's there too
much, that it's causing more grief and more aggravation than
it's worth, and a lot of people, I've been waiting for some of
them to come forth and say, ``Why don't you get them out of
here?'' Now you folks are asking for Region 11. So I'm just
trying to make sure I don't go down the wrong path here. So
help me out.
Ms. Brown. Thank you, sir. That's a risk we're willing to
take.
I think in a nutshell, there's too much for the State to do
alone. Two-thirds of the State is federally owned and operated.
We need somebody with clout to help us, but to help us in a way
that really makes sense. What we have now is help that's not
making sense too frequently. It's one-size-fits-all, it doesn't
take into consideration permafrost, arctic conditions, arctic
engineering.
So what we would like is a regional office that has the
clout within EPA to say, ``Here's the outcome that you want,
headquarters. We want to give you that outcome, but we want to
do it by method B as opposed to method A.'' That is what I
think the difference would be, that you would have somebody on
the ground who knows the difference, who knows that frequently
our mine discharges in heavily mineralized areas make water
quality actually better instead of worse. So we need to have
someone who can actually look for results and compliance in a
way that makes sense.
Senator Smith. Without embarrassing anybody personally,
that's not my intention here, do you have indications that some
of the EPA folks in the Seattle office are not knowledgeable of
your concerns in Alaska, or not dealing with those concerns
appropriately?
Ms. Brown. A number of the staff just do not have the time
or the travel funds to study and learn enough about the
conditions. You will have situations like Mr. Freeman
mentioned, where a log transfer facility that's located in a
bay that doesn't even have a name, they want to know what the
street address is. So those are the kinds of issues that we
have to deal with that waste a lot of both our time and EPA's
time, and that's why I think ultimately you might see a savings
in Region 11, because you'd be spending time on things that
matter.
Senator Smith. Did you want to respond, Mr. Freeman?
Mr. Freeman. Sure, Mr. Chairman, thank you. I guess the
first point is that the State of Alaska truly is just
remarkably different than any of the other States. I appreciate
Senator Baucus' comments about his State is different than
others on the east coast, for instance. But Alaska has the only
arctic and sub-arctic conditions, almost half of our State is
made up of wetlands. Just the vast area, it is remarkably a
different State. You can't beat having the people that regulate
the activities with regard to resource development and
community in the State itself, that have an understanding of
our uniqueness.
I also would quickly point out the LTF example. I spoke in
detail with one of my members who went through the process of
trying to establish a general permit for the log transfer
facility. He was really blown away at how adamant EPA staff in
Seattle were that he come up with an address and a road, for
when EPA staff did come, if they came to Alaska, to actually
find the log transfer facility, even though it was well over
dozens of miles away from any infrastructure.
Senator Smith. If you could both just try to characterize
for me the relationship in Alaska among those who would be
determined as regulators, those who would be determined as
environmental groups, those who might be businesses, or the
public generally. What is the relationship between all of those
groups in Alaska? Why don't you start, Mr. Freeman?
Mr. Freeman. Thank you, Mr. Chairman.
I think the relationship between, for instance, the
business community and our State regulators is very positive. I
think the relationship between the business community and the
EPA officials that are in Alaska is very positive. Any time
that you can meet on a basis, you can meet with someone more
than three times a year, you can meet with someone on a regular
basis, I think it helps establish personal relationships that
build trust and then can lead to flexibility.
With regard to the environmental community, I think that
really varies. You have some in the environmental community
from my perspective that truly are looking to protect Alaska,
while at the same time understanding the role of resource and
community development. I think you have other environmental
interests that I think would like ultimately for the State of
Alaska to be protected from Alaskans and maybe become a park
indefinitely.
Senator Smith. I find myself sitting here thinking that the
two of you should be on different sides, that the EPA should be
pushing for Region 11 and you guys should be opposing it.
Do the environmental, so-called environmental groups in
Alaska support the Region 11 designation?
Mr. Freeman. I haven't spoken with any in the environmental
community recently as to their position. Generally, I believe
historically they've been opposed because of concerns, drawing
resources away from the other States in Region 10. I have to be
honest, many of our members share a point that you brought up,
there are some concerns about having additional EPA regulators
in Alaska, a lot more EPA regulators. But as Commissioner Brown
noted, I think it's well worth the risk. Any time you can have
more people, more information, more data, I think it leads to
better decisionmaking. So we welcome the addition of a Region
11.
Senator Smith. Mr. Diaz, if you took the cost out of
whatever the proportionate cost of Region 10 staff, if you took
that cost out, what would be the additional cost, in your rough
estimate, to have a Region 11 office?
Mr. Diaz. I don't have that figure before me. I'd be happy
to provide it for the record.
[Additional information submitted by Mr. Diaz follows:]
The information that follows is derived from EPA's 1992 study of
the cost of establishing a separate Regional Office for Alaska. As
indicated, additional resources would be necessary for administration
and managerial functions, for relocation costs for new or current
employees (other than those already in Alaska), and for facilities and
equipment. These costs are not adjusted for inflation.
resources in region x and estimated costs for region xi
I. Current situation in Region X
A. Total resources
1. 623.6 FTEs
2. $2.0 million travel
3. $151.7 million State grants (FY00)
4. $22.6 million Tribal grants (FY00)
5. $44.2 million Congressional Adds
B. Resources devoted to Alaska activities
1. There are 100 Full Time Equivalents (FTE) in Region X working on
Alaska issues. Of the 100 FTE, 30 FTE are located in the Alaska
Operations Office in Juneau and Anchorage, and 70 FTE are located in
Seattle, Washington.
2. 376.3K travel
3. $25.3 million State grants (FY00)
4. $17.5 million Tribal grants (FY00)
5. $37.6 million Congressional Adds (includes, $30M AK Native)
C. Status of authorized programs
1. Air, drinking water, and pesticides programs are authorized to
be administered by Alaska. RCRA, NPDES, and 404 programs are not.
2. Alaska Department of Environmental Conservation is not prepared
to administer the NPDES program at this time. Funding for RCRA's
hazardous waste program has been virtually eliminated by the State.
3. Except for one State, wetlands permitting is Federal.
II. Resources required for Region XI
A. To have needed core of technical expertise, administrative and
management support, Region XI would need about 180 FTEs; see Table 1.
That would include 30 FTES (and 4 SEES) currently working in Alaska;
the remainder would have to be new resources or come from elsewhere in
EPA.
B. The net costs (shown in Table 2) to start up the Alaska Regional
Office assume that, of the 180 FTEs required, 60 FTE would come from
reallocations within EPA and 120 FTE would be for new employees.
C. Start up costs (e.g. furniture and equipment, building
modifications, employee relocation) would be at least $12 million. This
cost could also spread over more than 1 year.
D. To make cost estimates, assumptions were made that Region XI
would be operating at full strength by June 2002.
1. In reality, it would take 2 or 3 years (perhaps even longer) for
Region XI to hire and relocate staff, locate office space and make
necessary modifications, purchase and install equipment, etc.
2. Functions would have to be transferred gradually from Region X
as Region XI staffs up; to assure a smooth transition period, the two
might have to operate in tandem in many program areas for a period of
time.
3. Region XI's annual operating costs would be lower during this
time, but savings would be offset to some extent by the cost of having
Region X run some programs in tandem with Region XI, a cost that is
impossible to estimate without detailed planning for a transition.
E. EPA's Regional lab is not included because the workload would be
too small to justify the cost of establishing a new lab. EPA Region XI
could contract with private labs.
III. Foundation for estimating staffing requirements: key
characteristics of an EPA Regional Office
A. An EPA Regional Office (RO) has an established role, which is
firmly embedded in the Agency's culture, systems, and practices.
B. Headquarters is the source of policy and procedural guidance.
Regional Offices are the focal points of program execution and
integration. Regional Offices maintain strong working relationships
with States and Tribes, as well as local governments.
C. A Regional Office is headed by a Regional Administrator (RA)
appointed by the EPA Administrator. RAs are directly responsible to the
Administrator and have direct line authority over Regional Office
activities.
D. Deputy Regional Administrators and most office directors are
career-Senior Executive Service (SES) managers.
E. ROs are self-sufficient with respect to most functions, although
they may rely on other EPA offices for certain services.
F. ROs are full participants in Agency-wide planning, budgeting and
management activities. They work extensively with national program
managers on budgeting and policy issues.
G. RO policy decisions are subject to statutory and national policy
constraints.
IV. Assumptions and methods used to estimate resource needs: Operating
expenses include costs of equipment purchases and rental,
printing, supplies and materials, and services obtained through
contracts (excluding Superfund program contracts). Support
includes the cost of office space rental, postage, security,
fitness center and operation of wellness/daycare facilities.
A. Staffing
1. Assumed Region XI would be largely self-sufficient.
2. Need for core of technical expertise was the primary
consideration.
3. Assumed existing delegations to Alaska.
4. Estimate does not include special staffing for start-up (e.g.,
to lay out workspace, design telecommunications systems, design
information systems).
B. Costs
1. Salary and expense cost per FTE was based on Region X data; 25
percent Cost of Living Allocations were added to all salaries.
2. Cost of relocating new or current employees (except those
already assigned in Alaska) was included.
3. Estimate includes building modifications, furniture, equipment,
telecommunication, information technology, and other start up items.
4. June 2002 was assumed as the start-up date for the purpose of
making estimates. In reality, operations would be phased in over a few
years. Thus actual outlays in early years would be lower, but costs
would be affected by inflation.
Table 1.--Estimating Staffing Requirements for Region XI
------------------------------------------------------------------------
Office/
Office unit Office
total total
------------------------------------------------------------------------
Regional Administrator's Office: 4
Regional Administrator............................ 1
Deputy Regional Administrator..................... 1
Administrative Support............................ 2
Office of Management Programs: 22
Assistant Regional Administrator.................. 2
Human Resources Unit.............................. 2
Finance Unit...................................... 3
Infrastructure Unit............................... 3
Information Resources Unit........................ 4
Grants Administration Unit........................ 6
Acquisitions...................................... 2
Office of Water: 45
Office Director................................... 3
Drinking Water Unit............................... 10
NPDES Permits Unit................................ 5
NPDES Compliance Unit............................. 6
Groundwater/UIC/UST Unit.......................... 10
Watershed Restoration Unit........................ 6
Standards and Planning Unit....................... 5
Office of Air Quality: 10
Office Director................................... 2
State and Tribal Programs......................... 4
Air Enforcement................................... 2
Federal and Delegated Program..................... 2
Office of Environmental Assessment: 9
Office Director................................... 2
Quality Assurance and Data........................ 2
Investigations and Engineering.................... 3
Risk Evaluation................................... 2
Office of Environmental Clean-up: 13
Office Director................................... 2
Program Management................................ 3
Emergency Response................................ 2
Site Cleanup Unit................................. 6
Office of Waste and Chemicals: 16
Office Director................................... 2
Solid Waste and Toxics Unit....................... 5
Resource Management............................... 2
RCRA Compliance Unit.............................. 4
Permits........................................... 3
Office of Ecosystems and Communities: 21
Office Director................................... 3
Community Relations/Outreach Unit................. 1
Aquatic Resources................................. 6
Pesticides Unit................................... 3
Geographic Implementation & Natural Resources 8
Management Unit....................................
Office of Regional Counsel: 14
Office Director (Lead Attorney)................... 2
Attorneys......................................... 12
Office of External Affairs: 3
Office Director................................... 2
Public Affairs Officers........................... 1
Office of Enforcement and Compliance.............. 5
Office of Tribal Operations....................... 14
Office of Civil Rights and Environmental Justice.. 2
Office of Innovation.............................. 2
-------------------
Total........................................... 180
------------------------------------------------------------------------
Note: Region XI staffing would include 30.3 FTEs allocated to the Alaska
Operations Office currently. The remainder would have to come from an
increase in EPA resources or reallocation from other EPA offices.
Administrative support positions are included in the table.
Table 2.--Estimated Cost \1\ of Start-up and Hypothetical First Full
Year of Operation
------------------------------------------------------------------------
Total Net cost \2\
------------------------------------------------------------------------
Personnel Compensation and $16,880,220....... $11,309,747
Benefits (PC&B).
Travel.......................... 652.000........... 436,840
Operating expenses, contracts, & 5,132,800......... 3,438,976
support \3\.
Start-up costs.................. $12 million $12 million
minimum. minimum
---------------------------------------
Total....................... .................. ..................
------------------------------------------------------------------------
\1\ Estimates are based on an assumption that Region XI would begin full
operation June 2002; in reality, it will take two or three years
(perhaps even longer) for Region XI to reach that point. During that
time, annual operating costs would be lower than the figures shown
here. Even start-up costs would be spread over a period of more than
one year. While such a phase-in would reduce EPA's outlays during this
period, inflation would increase the ultimate cost.
\2\ Net cost was calculated by assuming 60 FTEs of the estimated 180
FTES required for Region XI would come from reallocations within EPA.
\3\ 0perating expenses include costs of equipment purchases and rental,
printing, supplies and materials, and services obtained through
contracts (excluding Superfund program contracts). Support includes
the cost of office space rental, postage, security, fitness center and
operation of wellness/daycare facilities.
__________
Mr. Diaz. But I think it's important to point out, if I may
very quickly, that the net costs of the 1992 study done on a
regional office suggested that the incremental net cost would
be $25 million. Now, one can argue about the numbers. I wasn't
there, I don't claim to say that those are the accurate
estimates. I don't say that the number of people that were
estimated to staff a regional office were exactly accurate.
They assumed 180 full time equivalents.
I would note, however, that with regard to the other
agencies that Senator Murkowski referred to earlier, their
staffing level is in the range of about 200 full time
equivalents to as high as about 1,700. We're dealing with a
regional office that has about 600-plus full time equivalents.
We're in a zero sum game, essentially. Sometimes even worse in
dealing with resource allocation within the agency at a time
that we're under a congressional mandate to reduce our FTE
utilization by 400 FTE.
These are very, very difficult resource decisions for us.
We are attempting to meet the needs that have been indicated as
representing the concerns of the Alaskan officials and others
today and into the future. But it is clear to my way of
thinking, regardless of the exact numbers and dollars that may
be associated here, we're talking about significant impact on
the resources available to other States within Region 10 at a
time when the agency is under congressional mandate to reduce
our resources, particularly with regard to people.
Having said that, I once again reiterate the point I made
earlier, that is that while we have done, I think, some things
well, we are committed to continuing to work with Commissioner
Brown and others in Alaska to try to address their concerns
with regard to on the ground folks, with regard to delegations
of authorities which are already unique, and with regard to
Region 10 attention to the needs of Alaska.
Senator Smith. I would make a request of you, Mr. Diaz, if
you could have your Region 10 administrator provide some
testimony for the record as to the rationale directly from that
region as to how things are working or not working or in
response to the comments that were made here specifically by
Mr. Freeman and Ms. Brown. It would help the committee, I
think. You've made the comments in general for the agency, but
a little more specificity on the relationship between Seattle
and Alaska would be helpful as we try to make a determination
on what direction to go with the legislation.
Mr. Diaz. We'd be happy to do that, and also respond
directly to some of the examples that are raised in the
testimony today.
[Additional information submitted by Mr. Diaz follows:]
Chairman Smith asked for an EPA response to the specific concerns
voiced by the other two witnesses on the panel. The following
information is submitted in connection with this request.
cominco
Concern: The Resources Development Council alleges that EPA did not
defer to the State's authority with respect to its air permitting
program, specifically with regard to the permit application for the Red
Dog Mine.
Response: Cominco, the operator of the Red Dog Mine in Northwest
Alaska applied for a ``Prevention of Significant Deterioration'' permit
for a significant expansion of the mine, which included an additional
diesel generator. The State approved the issuance of a permit. The
National Park Service (NPS), under its authority to review such
permits, expressed concern about the potential for environmental
degradation of a nearby National Monument and National Preserve if the
diesel generator were to be installed as permitted and asked EPA to
intercede. EPA also was aware of concerns expressed by eleven Alaska
Native Villages representing about 6,000 Natives who depend on the
local environment for subsistence.
Five substantive technical issues were identified by NPS and all
but one were resolved. The remaining issue related to the adequacy of
the record to make a ``best available control technology'' (BACT)
determination for the diesel engine under the Clean Air Act. When
Alaska awarded the permit with the unsupported BACT determination,
Region X, in consultation with EPA Headquarters, issued an
Administrative Order to Cominco instructing it not to build the engine
pursuant to the invalid permit. The rest of the expansion, however, was
unaffected. While Alaska has authority to issue permits, it must do so
in accordance with the Clean Air Act. EPA's actions were taken in its
oversight role to ensure that the Clean Air Act was followed, pursuant
to Sections 167 and 113 of that Act.
The State and the company have filed petitions for review in the
Ninth Circuit Court of Appeals, who will determine whether EPA's
actions were appropriate. On June 1, 2000, the Court denied Cominco's
request for a stay of EPA's order prohibiting construction of the
diesel engine in question. The final decision of the Court is pending.
We appreciate the National Park Service alerting us to this matter.
Rather than a lack of understanding of the specific circumstances in
Alaska, we believe this example of the Red Dog Mine reflects an alleged
failure to meet Clean Air Act requirements.
arsenic
Concern: A claim was made that the point discharge level for
arsenic established by EPA for placer mining permits is 300 percent
lower than the drinking water standard for arsenic.
region x response
In 1996, Alaska Department of Environmental Conservation reported
to EPA that the human health standard for arsenic established by EPA
under the National Toxics Rule was a problem for the State due to the
naturally high levels of arsenic in some Alaskan waters. The rule that
gave rise to Alaska's particular concern was developed under the normal
notice and comment provisions and was broadly applicable to all States
not then in compliance with the Clean Water Act. Once Alaska's concern
was brought to EPA's attention, the Agency (Region X and Headquarters)
worked collaboratively with the State to explore ways of addressing the
situation. Alaska proposed that the Safe Drinking Water Act maximum
contaminant level should be used to meet the requirements of the Clean
Water Act. EPA agreed that the arsenic levels in freshwater, in
conjunction with Alaska's aquatic life criteria for arsenic, met the
requirements of the Clean Water Act.
The Administrative Procedure Act requires EPA to promulgate a new
rule in order to remove a State from the National Toxics Rule. EPA
published a proposed rule and request for comments in the Federal
Register on May 21, 1997. The final rule was published on March 2,
1998, with an effective date of April 1, 1998.
When Alaska was removed from the National Toxics Rule, Region X was
asked by the State to modify the placer mining general permit. EPA
proposed the general permit using the practical and flexible standard
for allowable discharges of arsenic under the Safe Drinking Water Act
maximum contaminant level. This became effective on November 27, 1998.
We believe that EPA worked effectively with the State to address
the effects of this rule to take into account the special circumstances
of Alaska.
state revolving funds programs
Concern: The State Revolving Funds (SRF) programs set project
construction time requirements and costs that Alaska cannot meet due to
seasonal and geographical construction constraints unique to Alaska.
Region X Response: National rules for SRF Loan Programs are
flexible and do not define time frames in which construction must be
complete. The rules allow States to establish construction schedules
that take into account a variety of factors, including seasonal and
geographical considerations. Construction projects funded by the SRF
may be phased and funded over a multi-year period, since SRF loans
carry over from year to year. The SRF programs do require that States
commit project loan funds (i.e. enter into loan agreements) at levels
specified in grant payment schedules prepared by the State and approved
by EPA. However, specific project costs and project schedules are not
subject to SRF rules once a project has met eligibility requirements.
safe drinking water testing requirements for rural communities
Concern: EPA requires testing for contaminants that have never been
found in Alaska and requires the State to re-draw samples due to
arbitrary sample holding times.
Region X Response: The Safe Drinking Water Act requires EPA to
monitor drinking water for the protection of public health. EPA
recognizes that some contaminants may not be found in Alaska or may be
found very infrequently. In these cases, EPA grants a waiver to Alaska
allowing samples to be taken infrequently (periodically over a 3- to 9-
year period, usually every 6 years), once the water is initially
certified to be contaminant free.
With regard to the sample holding times, EPA requires that
bacterial samples be analyzed within 30 hours to preserve sample
integrity. Although a shorter holding time is recommended, the 30-hour
limit is based on the die-off rate of bacteria after which the
likelihood of detection is greatly reduced. In the case of Alaska, EPA
has granted a variance from this requirement under certain
circumstances, such as remote locations and weather delays when these
factors impede the collection and transportation of samples.
safe drinking water operator certification
Concern: Alaska's request for alternative drinking water operator
certification requirements was ignored by EPA.
Region X Response: The 1996 amendments to the Safe Drinking Water
Act authorize the Safe Drinking Water Operator Certification Program.
The purpose of the Program is to improve public health protections
through training and certification of small water systems operators.
National guidelines, published in February 1999, provide States with
flexibility to design programs that fit their specific needs and
circumstances. Various options have been discussed with Alaska,
including the concept of traveling trainers and certification by oral
method, correspondence course, or Web-based methods.
At a Citizen's Advisory Board meeting in Anchorage last February,
there was a general consensus that an expanded Operator Certification
Program was needed and a new framework program was presented. Although
the Alaska Department of Environmental Conservation has delayed
development of an alternative certification program, EPA continues to
work with the State on the revised rules in anticipation of the
upcoming deadline of February 5, 2001.
npdes permits
Concern: EPA's NPDES permit system does not work well for Alaska.
Region X Response: EPA's Alaska-based staff involved in permitting
includes two professionals who play major roles in permits for mineral
and storm water management programs. Normally, at least one EPA
professional makes an on-site inspection of any project requiring an
NPDES permit.
EPA understands that oil companies face special challenges on
Alaska's North Slope with respect to EPA's multi-sector storm water
permit requirements. Industry has requested that EPA modify the North
Slope general permit to include storm water discharges. EPA has been
willing to accommodate the industry's concern but has awaited ADEC's
proposed modification. We understand that at least one oil company has
been willing to provide financial support to the State for such work,
but our most recent information is that ADEC currently has no staff
member assigned to the effort.
The State of Alaska has a critical role in this process by
certifying EPA's proposed final permits. We continue to work with ADEC
staff to prioritize the permit workload and take into account State
concerns in developing NPDES permits.
relationships with tribes
Concern: EPA does not have a good relationship with Alaska Tribes,
primarily due to its lack of understanding, which results in EPA's
placement of treatment systems in Native Villages where they are not
necessary.
Region X Response: EPA Region X has committed extensive resources
and effort to work with and fully understand the environmental concerns
of Alaska Tribes and Alaska Natives. Region X has a Tribal Office with
a staff of 18. In addition there is a Tribal relations unit in the
Alaska Operations Office with six full-time staff, three of whom are
Alaska Natives. In addition, EPA has transferred one employee to
support the work of the Alaska Intertribal Council, which consists of
178 Alaska Tribal Governments.
The Tribal Office Director and Tribal relations unit make regular
site visits to Alaska Tribes and have completed 31 site visits over the
last nine months. In addition, EPA has taken the following actions to
improve its relationship with the Tribes and Native Villages:
EPA provides regular training on managing Federal grants
and working with the Agency.
EPA has developed a Tribal sensitivity training course
(one conducted in Seattle and two in the Alaska Operations Office) for
EPA employees, taught by Tribal representatives and leaders from
throughout Alaska.
Region X has established a Tribal advisory committee
consisting of four Tribally-elected representatives from each region of
Alaska. This committee meets monthly to advise the Agency's Regional
leadership of Tribal concerns, priorities and issues, and to assist the
Agency in developing policy for working with Tribes and Native Villages
of Alaska.
EPA has engaged in extensive outreach efforts to consult
with Tribes on specific Agency actions, such as Cook Inlet NPDES permit
for oil platforms discharging into sensitive Tribal subsistence areas;
promulgation of the Tribal Authority Rule (TAR) under the Clean Air
Act; development of Tribal unified Watershed Assessments and Clean
Water Action Plans.
EPA staffwork closely with the State Village Safe Water program and
with other Federal agencies in determining priority placements of
treatment systems in Tribal villages. In addition, EPA is an active
participant in the Governor's rural sanitation task force and chaired
the Operation and Maintenance Subcommittee of that task force.
wetlands enforcement
Concern: Regulators based in Alaska are more likely to respond to
local realities and the need for flexibility in permitting.
Region X Response: There is substantial local input in EPA's Alaska
wetlands program. There are four EPA wetlands program staff in the
State, three of whom operate from EPA's Operations Office in Anchorage
and one based in the Kenai Peninsula. These staff members are trained
wetlands ecologists who provide technical assistance and other support
to address aquatic resources issues in the State. All work closely with
the Army Corps of Engineers (the Corps) and other Federal and State
agencies. This primary focus is on population centers and areas of
development that are likely to have significant wetland impacts. These
include:
Anchorage Bowl: special emphasis on coordinating with the
Municipality of Anchorage and the Corps on re-issuance of the Anchorage
General Permit.
Kenai Peninsula: special emphasis on developing local
plans to address wetlands and other natural resource concerns (e.g.
Community Rivers Planning Coalition in Anchor Point).
North Slope Oil and Gas: coordinate with the Corps,
Federal and State agencies, Tribes, and oil companies on wetlands
issues pertaining to development on the North Slope.
Matanuska-Susitna Borough: coordinate with the Corps and
local watershed councils.
EPA believes that these efforts reflect substantial collaboration
with affected entities by experts located in Alaska.
coal mine project
Concern: The distance between the Region X Office and Alaska may
have posed problems for the Chuitna Coal Mine ``greenfield'' project.
Region X Response: EPA Region X, in cooperation with the Army Corps
of Engineers and the Alaska Department of Natural Resources, led the
preparation of the environmental impact statement (EIS) for the Diamond
Chuitna Coal Project. In accordance with provisions of the National
Environmental Policy Act (NEPA), EPA Region X also coordinated with the
project developer (located in Dallas), other Federal and State
agencies, local organizations, and the public throughout the
development, comment period, and finalization of the EIS.
Environmental impact statements for large energy projects such as
this one are inevitably time-consuming because of the participation of
substantial numbers of affected public and private organizations and
other requirements of NEPA and the Clean Water Act (CWA). To streamline
the review processes, EPA combined the preparation of the EIS with the
development of the National Pollution Discharge Elimination Permits
(NPDES). The draft NPDES permits were included in the draft EIS and the
proposed final permits were in the final EIS. The public hearings for
the draft EIS and draft NPDES permits, held by EPA in Alaska, also were
combined.
Additional time was needed for this project due to delays by the
developer in providing needed information for the preparation of the
EIS and changes made to the proposed project during the course of the
NEPA review. Coordinating the project review in Alaska would not have
reduced the time needed for NEPA- and CWA-mandated procedural and
public review requirements. In our view, distance has not been a factor
in the evolution of this project.
anchorage sewage treatment plant
Concern: The permit for the Anchorage Sewage Treatment Plant has
not been issued yet, and the Alaska Department of Environmental
Conservation has stated that the permit is unnecessary and the delay is
unreasonable.
Region X Response: EPA must issue a permit under the Clean Water
Act (CWA) that conforms to the requirements of the Endangered Special
Act (ESA), regardless of whether decisions are made in Seattle or in
Anchorage.
Review of the application for permit renewal has been prolonged
because new prospective environmental impacts have been identified
since the first permit was issued which are considered more significant
and require further study and project redesign. These new impacts
include the location of a new seafood processor in Anchorage and new
concerns about the Beluga whale population.
During the permit process, it was discovered that Upper Cook Inlet
exceeded Alaska Water Quality Criteria for a number of metals and
turbidity. In order to reissue the permit, the State agreed to complete
a site-specific criteria revision for the affected area of Cook Inlet.
Alaska submitted the criteria revision to EPA for approval in May
1999. EPA issued a draft permit in November 1999. Before final EPA
approval is given, action on the site-specific criteria and permit, EPA
must complete endangered species consultation with the National Marine
Fisheries Services (NMFS). Since this project was initiated, concerns
over the Beluga whale population have increased. EPA Region X decided
to prepare a biological evaluation for these two Federal actions and
submitted the evaluation to NMFS for review in April 1999. EPA also
must address new Essential Fish Habitat (EFH) requirements. EPA is
currently waiting for a response from NMFS on both the endangered
species and EFH evaluations. Once Region X adequately addresses
concerns raised by NMFS, EPA will take final action on the criteria
revision and NPDES permit.
oil and gas expertise
Concern: In the testimony of the Resource Development Council, the
point was made that EPA Region X does not have staff with in-depth
understanding of oil and gas exploration activities.
Region X Response: Region X staff, both in Seattle and the Alaska
Operations Office, has had extensive education, training, and
experience with respect to arctic oil and gas facilities and practices.
Employees working in this field have undergraduate degrees in mining
engineering, geology, and petroleum engineering, some with advanced
degrees in geology, marine geology, geophysics, and chemical
engineering. Prior to joining EPA, many have had Alaska-based oil and
gas experience either with the State of Alaska or with private
industry. More detailed information on the education, training, and
expertise of individual employees in the oil and gas exploration field
is available on request.
fairbanks air quality
Concern: Fairbanks is at risk of losing Federal funding and of
facing sanctions if it does not come into compliance with the Clean Air
Act.
Region X Response: We recognize that Alaska faces air quality
challenges that are different from other areas, and we are committed to
working with the State to address those challenges. In the case of
Fairbanks, Alaska has not submitted a plan to demonstrate how Fairbanks
will meet the health-based air quality standard for carbon monoxide.
Nor has Alaska submitted information showing that Fairbanks cannot
attain the carbon monoxide standard by adopting reasonable control
measures. Because the plan has not been submitted, Fairbanks could be
subject to offset sanctions (requirements that new CO sources offset
their emissions by a 2:1 ratio) in October 2001 and to limitations on
Federal highway funds in April 2002.
These sanctions would be avoided if Alaska submitted and EPA
approved a plan for Fairbanks to meet the CO standard. EPA has pledged
to continue to work with the State and North Star Borough to identify a
range of measures to address the specific circumstances applicable to
Fairbanks and to provide healthy air to the citizens of Fairbanks.
EPA Headquarters and Region X have provided technical and financial
support for a number of special projects aimed at gathering scientific
data on air quality for temporal and spatial patterns in Fairbanks
compared to other major cities, on the sources of air pollution and
their relative contributions, and on the impacts of various control
strategies to abate pollution levels. EPA also has begun discussions
with the Department of Energy and a manufacturer of heat storage
catalytic converters to examine the technology's potential for use in
cold weather climates, such as Anchorage and Fairbanks.
Senator Smith. Does anyone else have any further comment? I
know especially you two, came all the way from Alaska.
Ms. Brown. If I could, Senator, I just want to, in the
study that was done in 1992, it said that there were 84 FTEs
that were working on Alaska issues. I don't know how it went
from 84 to 180 is necessary for a new region. But if you use
the 84 number that was provided, if there are 39 already in
Alaska, and then that report said 40 others could come out of
Region 10 without causing harm, you're pretty close to 84 right
there. If you do the core task analysis, it's not just how much
time you spend, but what you're producing with that time and
are you spending the time in really core tasks versus busy
tasks. A lean but focused Region 11 I think would still make an
improvement.
Senator Smith. Just a reminder, I also would like to have
for the record your estimate of the costs, factoring out
whatever portion of the Seattle office would be attributed to
Alaska. Let me just remind the clerk, we'll keep the record
open until 5 o'clock on Friday for any additional questions
from the members or additional information.
Thank you all very much for coming. The hearing is now
closed.
[Whereupon, at 11:27 a.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Senator Frank H. Murkowski, U.S. Senator from the State
of Alaska
Mr. Chairman, thank you for scheduling this hearing on a bill that
I have introduced with Senator Stevens to establish an EPA Region in
Alaska.
Why does Alaska need a separate region? Part of the answer lies in
the uniqueness of our ecosystems and the extent of our real estate.
Alaska is comprised of 365 million acres or 586,000 square miles.
That's two and a half times larger than Texas--or a little more than 63
New Hampshires, Mr. Chairman. Alaska stretches 2,400 miles from east to
west, and 1,420 miles from north to south.
Alaska has 170 million acres of wetlands--that's 65 million acres
more than the combined total of wetlands in the other 49 States.
We have more coastline than the rest of the Nation combined--some
47,300 miles of shoreline.
We have 3 million lakes larger than 20 acres.
We have ecosystems ranging from arctic desert to temperate rain
forests, including ecosystems that are found nowhere else in the United
States. In addition, Alaska is more ecologically diverse than any other
State.
That's why virtually every other Federal Agency with environmental
or conservation responsibilities has a regional office in Alaska. These
include:
The National Park Service
The U.S. Fish and Wildlife Service
The Bureau of Land Management
The U.S. Forest Service
The U.S. Geological Survey
The Bureau of Indian Affairs
The Mineral Management Service
The Bureau of Mines
Even the Federal Aviation Administration has a region comprised
only of Alaska. Moreover, the Coast Guard and the U.S. Army Corps of
Engineers have District Offices that are in Alaska and specifically
devoted to Alaskan issues.
Congress has already recognized the merits of an Alaska region for
the EPA. In the fiscal year 1992 VA-HUD appropriations bill, Congress
authorized the President to establish an eleventh region of the EPA
consisting solely of the State of Alaska. An Administrative Order to
that effect was signed by EPA Administrator William K. Reilly on
January 20, 1993. Unfortunately, the order was not carried through. I
ask that a copy of the signed order be included in the hearing record.
Mr. Chairman, as I know from my service on this committee when I
first came to the Senate, and as you know from your leadership in
environmental issues, environmental protection is a complex
undertaking. ``One-size-fits-all'' approaches cannot be written in
Washington or Seattle and applied in Alaska. Bringing the regulator
closer to the problem yields better decisions and more effective,
thoughtful regulation.
Moreover, because 65 percent of Alaska is owned and controlled by
the Federal Government, most EPA activities directed at Alaska require
coordination with the Federal land managers who are headquartered in
Alaska.
Other benefits we expect from this legislation include:
Reduced number of appeals and adjudications;
Reduced travel between Seattle and Alaska;
Better service to the public;
Lower costs.
While EPA may disagree, the last time we asked the Alaska
Department of Environmental Conservation to perform an analysis of the
budgetary impacts of an Alaska Regional EPA office, they projected a
modest savings to the taxpayer. I ask that materials related to cost be
included in the record.
Mr. Chairman, I wanted to leave you with just a few examples of
what happens when good intentions in the EPA Seattle office go awry in
Alaska.
In the regulation of mining operations, EPA sought to require
operators to reduce arsenic discharges to a level below the naturally
occurring ambient levels. They were apparently unaware that the high
level of mineralization in areas of Alaska cause some streams to have
high levels of naturally occurring contaminants.
Here is another example: When EPA insisted that Fairbanks, my home
town, use MBTE as a oxygenate for motor fuels, nobody understood what
happened when MBTE volatilized in an extreme cold air inversion,
exposing humans directly to the chemical. Let me tell you what
happened--people started getting sick--complaining of headaches,
nausea, and dizziness. For far too long, EPA's distant Seattle office
regarded the health complaints of Fairbanks residents as little more
than the grumblings of crackpots, and refused to grant a waiver. Many
months later, after being confronted with hard evidence of sickness,
EPA granted a waiver.
How much quickly might that waiver had come, and how many fewer
Alaskans would have gotten sick, if EPA had a regional office in
Alaska?
Today, Fairbanks is a non-attainment area for Carbon Monoxide by
virtue of the Arctic air inversions that occur several times a year.
Seattle has never experienced a true Arctic air inversion, so it
doesn't surprise me that the EPA regional office hasn't come to terms
with the best way to help Fairbanks solve its problem. Instead of
considering the unique situation that Fairbanks is in, the EPA started
the sanctions clock.
In Nome, where I visited this past weekend, the EPA wants the
smokestack on the powerplant raised to better dissipate emissions.
According to the Federal Aviation Administration, doing so would
interfere with the landing pattern and require a costly realignment of
the runway at Nome's airport, which would largely be undertaken at
Federal expense. Is this a sensible, cost-effective solution? Of course
not. But it's easy to see how this can happen if EPA is sitting in
Seattle calling the shots without coordinating with the FAA, which has
its regional headquarters in Anchorage.
These are just some examples. Commissioner Brown will talk about
the Anchorage Wastewater Treatment Plant permit where a great deal of
time, effort and money has been expended for no improvement in water
quality.
Let me stress that it is not my intent to question the dedication
and good intentions of the EPA people in Seattle--but if they are
closer to the action, they will do a better job.
In conclusion, I ask that this committee move our legislation that
directs the establishment of an Alaska region.
In the interim, you might ask the EPA why they haven't done so
already.
Thank you, Mr. Chairman.
__________
Statement of Romulo L. Diaz, Jr., Assistant Administrator for
Administration and Resources Management
Mr. Chairman and members of the committee, I am Romulo L. Diaz,
Jr., Assistant Administrator for Administration and Resources
Management at the Environmental Protection Agency (EPA). I am pleased
to have the opportunity to appear before this committee to present the
Agency's views on S. 1311, a bill to create a separate EPA Region for
Alaska.
Prior to discussing S. 1311, I'd like to provide a brief history of
EPA's current ten-region structure. EPA was established by
Reorganization Plan No. 3, signed by President Nixon in 1970. Under the
terms of the Plan, components of several departments and agencies were
consolidated in the new EPA, including components of the Departments of
Interior, Agriculture, and Health, Education and Welfare (HEW).
EPA inherited two distinct regional structures from its predecessor
agencies. Those components from HEW followed the ten standard Federal
regions suggested by a Presidential directive issued in March of 1969.
Components inherited from the Department of the Interior used a nine-
region system divided along river basins. In order to facilitate easier
operations with local and State governments as well as other with
Federal agencies using the ten standard regions model, EPA chose to
adopt this model.
In 1974, the Office of Management and Budget issued OMB Circular
No. A-105, which formalized the 1969 Presidential directive and
required agencies to adopt the standard ten-region structure unless
specifically exempted. OMB Circular A-105 remained in force until it
was rescinded in 1995. In its recommendation to rescind the circular,
OMB cited the Federal Government's expanded use of technologies to
interact with the public and other factors that made a strict regional
structure no longer necessary. The rescission, however, did not require
agencies to re-examine existing regional structures. While EPA has in
recent years completed several reorganizations within individual
regions, it has not found any basis for changing the existing ten-
region structure.
In 1990, Walter Hickel, then Governor of Alaska, called upon EPA
Administrator William Reilly to create a separate Regional office for
the State. Reasons given by the Governor and others in support of this
request included among others, the State's unique environment and size,
the predominance of oil exploration and development in the State's
economy, and security issues related to Alaska's proximity to the
Soviet Far East.
In response to the request to create a new region and the concerns
expressed by the delegations of the potentially affected States, EPA
undertook a study of the Implications of Establishing a Regional Office
in and for Alaska. This study, which was completed in 1992, concluded
that the proposed new region would not be cost effective and that there
were better approaches to meeting the concerns of Alaska's elected
officials.
On January 19, 1993, President Bush signed a memorandum ordering
Administrator Reilly to establish Region XI. Administrator Reilly
responded to the President's memorandum on January 20, 1993, by signing
an ``administrative order'' establishing the new region.
Under the new Administration, the Agency reviewed the report and
the history of the proposal. After careful consideration was given to
the concerns expressed by Alaska's elected officials, its citizens, and
State, industry, and environmental groups, and the findings of the
Alaska study, EPA believed that the concerns of Alaska could be more
effectively and efficiently satisfied through a variety of other means.
These included better collaboration with the State in developing
program priorities, in improving delivery strategies, and in modifying
administrative structures. In light of the 1992 study and EPA's
experience in the intervening years, we remain convinced that the
creation of a separate Regional Office for Alaska would not be the most
effective structure for addressing the unique circumstances faced by
Alaska. We also remain committed to working with the State to most
effectively and efficiently serve our mutual goals of protecting public
health and the environment.
Let me review a few of the most important ways in which EPA today
is working to fulfill its commitment to one of this nation's most
geographically diverse areas.
recognizing alaska's uniqueness
The administrative structure that EPA's Region 10 created for its
Alaska operations is unique among EPA's State organizations. With 39
employees, it is the largest of any EPA State-based operation, and EPA
intends to maintain the necessary emphasis to keep pace with the
State's needs.
The Alaska Operations Office makes recommendations on a wide range
of environmental and human health issues affecting the people of
Alaska. These recommendations form the basis of final Agency decisions
on matters relating to the State.
The Alaska Operations Office is responsible for on-the-ground
implementation of EPA programs in the State. In addition to
administering some programs directly, the Operations Office provides
technical assistance to help the State and local and Tribal governments
in administering EPA programs that have been delegated to them at their
request.
EPA offices in the cities of Juneau and Anchorage provide the
public in those population centers with access to EPA staff. The
Agency's office in Juneau facilitates close coordination of EPA
programs with related departments of the State government. The
Anchorage office is readily accessible to the businesses and industries
regulated by EPA.
In addition to these offices, EPA employees work with the
Department of Interior in a Joint Pipeline Office, assist the
Department of Defense in waste clean up, and work in the office of the
Alaska Inter-Tribal Council. To support preservation and restoration of
the watersheds in the Kenai Peninsula, EPA has one staff member in that
location.
These employees are highly trained professionals, many with
advanced degrees in scientific and technical fields, specifically
selected because of their familiarity with the arctic and subarctic
climate and with the challenges of dealing with environmental issues in
remote areas. To broaden the expertise of EPA staff and to maintain
their in-depth knowledge of local issues, the Alaska Operations Office
has used agreements for the exchange of personnel with State and local
government organizations such as the city of Anchorage, the Alaska
Department of Environmental Conservation, the Alaska Inter-Tribal
Council, the Joint Pipeline Office, the Alaska Native Health Board, and
the Denali Commission. In addition, interagency exchanges are in effect
between EPA and the U.S. Department of Defense and the U.S. Forest
Service. These exchanges help the Agency develop programs that are
tailor-made for local conditions and that build coalitions with various
organizations with similar Alaska-related concerns and goals.
flexible program implementation for alaska
In 1995, EPA initiated a National Environmental Performance
Partnership System. Under this system, the Agency's partnership
agreement with the State of Alaska, initially drafted in May 4, 1977
and updated every 2 years, is an integrated and flexible strategic plan
for addressing the State's environmental problems. The recently revised
agreement contains mutually determined priorities and a plan of action
that involves both the EPA and the State in working together to achieve
environmental goals. The plan encompasses all EPA-financed assistance
that goes to the State, including that designated for air quality,
water quality, drinking water, facility construction, underground
storage tanks, wellhead protection, toxic waste clean-up, hazardous
waste, and pollution prevention programs.
A central element of the partnership between EPA and Alaska is that
the agreement integrates federally-funded programs administered by EPA
with related programs funded by the State and by other Federal
agencies. It is intended to give the State maximum flexibility to
address its specific needs while maintaining a core level of
environmental protection.
A few examples will serve to illustrate the flexibility that EPA
gives to Alaska:
Fuel standards. In light of the State's unique
geographical, meteorological, air quality, and economic factors, EPA
has granted Alaska an exemption from meeting the current sulfur
standard for highway diesel fuel. The Agency is now proposing to lower
the national standard to 15 ppm (parts per million) for sulfur, but
also proposed permitting Alaska to develop its own alternative low-
sulfur transition plan. In addition to flexibility on the sulfur
standard, the State also has authority to develop its own method for
reducing carbon monoxide, and has been working with Region 10 to
identify alternative approaches to achieve carbon monoxide reductions.
Rural sanitation. Region 10 created a Rural Sanitation
Coordinator position in the Alaska Operations Office to work directly
with villages and with other agencies and organizations that provide
rural sanitation services. The Operations Office played a substantial
role in the development of the State Rural Sanitation Action Plan,
which recognizes the challenging sanitation issues faced by communities
in rural Alaska and the difficulties these communities have in
managing, operating, and maintaining sanitation facilities. EPA's
Office of Wastewater Management provides funds to the Alaska Native
Health Board to assist rural Alaskan communities in meeting their sewer
and water system management, operation, and maintenance needs.
Drinking water. The Agency recognizes the particular
challenge Alaska faces in ensuring that communities have water that is
safe for drinking, swimming, and fishing. There are more than 3,500
public water systems in Alaska, 95 percent of which serve fewer than
500 people in rural and remote locations. To help communities in Alaska
meet this challenge, EPA has provided in excess of $100 million since
1995 for construction of drinking water facilities in Alaskan
communities.
Wetlands protection. EPA and the Corps of Engineers have
worked to develop a wetlands permitting process that takes into account
the State's highly diverse environmental, economic, and geographical
conditions. In 1994, as part of the Alaska Wetlands Initiative, EPA and
the Corps convened a panel of stakeholders and solicited broad public
input to identify and address concerns with the implementation of the
Section 404 program in Alaska. Some 2000 comments were received over
the course of the initiative. In response to concern's raised by these
stakeholders, guidance was issued that emphasizes the discretion and
flexibility afforded to the Corps to craft decisions that take into
account environmental conditions unique to Alaska. As part of EPA's
ongoing Section 404 efforts in Alaska, the Agency is working closely
with local interests in the Kenai to determine how recreational and
economic activities can proceed while protecting important aquatic
resources.
making progress, achieving results
A number of measures point to the success of EPA efforts to tailor
programs to the specific needs of the State and to give the State the
greatest possible flexibility to establish priorities and allocate
funds. Here again are some examples:
Permit backlogs for municipal discharges, mining, pulp,
and seafood operations have been reduced from 69 percent in 1996, to 21
percent in March 2000, and are expected to be further reduced by the
end of this calendar year.
The Alaska Operations Office has worked successfully with
the State, the city of Juneau, and the cruise industry to help ships
comply with State and Federal air and water standards in a cost-
effective and environmentally protective manner. This project, and
others such as Superfund site cleanups and the restoration of abandoned
industrial sites to productive use, demonstrates that environmental
protection and economic development in Alaska, as elsewhere, are
complementary.
EPA has been the primary sponsor, both financially and
technically, of the Yukon River Inter-Tribal Council, which is
conducting research on ways of protecting the Yukon River Watershed.
EPA, the State of Alaska, the Canadian Government, and
related other Federal and State agencies are currently in negotiations
on ways to protect the Taku Watershed and Alaska fisheries from the
harmful effects of mining wastes.
EPA created an arctic monitoring program to assess the
impact of circumpolar and transpacific pollutants such as persistent
organic pollutants and radioactive contaminants on the State's
sensitive arctic region and its indigenous peoples.
Summary
During the past 7 years, EPA has worked to address all the issues
that prompted the proposal to create a separate Regional office for the
State. Although there is always room for improvement, much progress has
been made. As I have already indicated, we are addressing Alaska's
unique and varied geography directly in a number of cost-effective
ways. We will continue to assess our program needs for the State.
On behalf of the Environmental Protection Agency, I pledge that we
will continue to work with Members of Congress as well as the State of
Alaska and others to consider additional ways to better serve the
environment and people of Alaska.
Thank you for the opportunity to appear before you today. I would
be pleased to answer any questions you may have.
__________
Responses by the Environmental Protection Agency (EPA) to Questions
from Senator Smith
Question 1. The EPA and the Alaska Department of
Environmental Conservation agree that there are unique features
about Alaska that require special regulatory treatment. The EPA
and the State, however, disagree over whether Alaska should be
a separate region. It could reasonably be argued that having a
separate Regional Administrator for Alaska is necessary because
only a political appointee can effectively go to bat for the
State. Political appointees carry more weight in the battle for
scarce funds than even the most talented civil servants. The
policy views of political appointees also carry more weight in
the debate over the best environmental regulation. Does the EPA
agree or disagree with the proposition that a political
appointee can better represent the views of Alaska within the
EPA than can a civil servant?
Response. EPA does not agree with the proposition that a
political appointee could better represent the interests of
Alaska than a civil servant. Nonetheless, we note that the
Regional Administrator for Region X, which has responsibility
for Alaska, has traditionally been a political appointee. The
experience of this Agency is that environmental and public
health priorities must be balanced with resources available to
address them, and that it is the strength of the argument
rather than the status of the advocate that is likely to be
most persuasive.
Question 2a. In your testimony, you said that having a
separate Region for Alaska is not the most effective means of
addressing the unique circumstances faced by Alaska. Please
explain in detail your reasons for that conclusion. In doing
so, please address the following subjects.
Please identify the cost and non-cost factors on which you
rely for that conclusion, as well as identify the relative
weight given to each factor.
Response. The data that was analyzed when the establishment
of a Regional Office for Alaska was first proposed suggested
that the creation of such an office would not be cost
effective. That conclusion remains valid. For example, one
expert on the subject of underground storage tanks provides
service to the four States in Region X. Creating a separate
Regional Office for Alaska would necessitate duplicating this
expertise for Alaska alone. Other areas of scientific and
technical expertise would also have to be duplicated.
Question 2b. What is the cost of establishing a separate
Alaska region? Please separately identify and distinguish the
cost of immediately creating a fully staffed Regional Office
from the cost of creating a fully staffed office gradually.
Response. Information on the cost of establishing a
separate Regional Office was provided to the committee on July
27. A table with ``phase-in'' information on estimated costs of
creating such an office over a 4-year period is attached.
Question 2c. Please identify all personnel positions (e.g,
Regional Administrator) that would need to be filled in order
to operate a separate Alaska Region, as well as all other
matters (e.g., office space) that would be needed in order to
establish a separate Alaska Region.
Response. This information has been provided as above in
answer to (b).
Question 2d. Please provide to the committee any formal
analysis of the foregoing factors that has been prepared during
this Administration.
Response. No analysis of the foregoing factors was
undertaken during this Administration.
Question 3a. Mr. Diaz, one of the documents that you
provided to the committee is entitled ``Region XI Approaches to
Closure'' and is dated June 23, 1993. The document is unsigned.
The document states the following (at page 1): ``The 12th floor
has been told by OGC that reversing the order establishing
Region XI will require the written approval of the President.''
Please explain this statement in detail for the committee. In
doing so, please address the following subjects.
Who prepared this document?
Response. We have not been able to determine the author of
this document.
Question 3b. To whom was this document sent?
Response. We have not been able to determine the intended
recipient of this document nor whether it was ever sent.
Question 3c. Was the Administrator or Deputy Administrator
ever briefed regarding this document or the subject of this
document?
Response. The Administrator was briefed on the Alaska
Region XI issue, but has no recollection of being briefed on
the document or the subject of the document. We have not been
able to find any information in the files of the Administrator
or Deputy Administrator indicating that either official had
been briefed on the document.
Question 3d. Does the quotation note[d] above represent the
EPA's current position?
Response. No.
(i) If not, what is the EPA's new position?
Response. After informally consulting with the Office of
Legal Counsel, Department of Justice, EPA's Office of General
Counsel (OGC) has advised that only the President can rescind a
Presidential memorandum and that the President may do so orally
or in writing. To the best of our knowledge, this is not a
``new'' position because the unsigned document dated June 23,
1993, entitled ``Region XI Approaches to Closure'' did not, and
did not purport to, State EPA's position on this issue.
(ii) When did the EPA change its position?
Response. As indicated in the answer to (i), to the best of
our knowledge, EPA has not ``changed'' its position. OGC
examined this issue once Chairman Smith questioned Mr. Diaz
about the June 23, 1993 background document at the committee's
June 6, 2000 hearing.
(iii) Who was involved in the process by which the EPA
changed its position?
Response. To the best of our knowledge, EPA has not changed
its position. Subsequent to the hearing, staff in the Office of
General Counsel, EPA, and in the Office of Legal Counsel,
Department of Justice, were involved in addressing the legal
issues of whether the President must rescind a Presidential
memorandum and whether this must be done in writing.
Question 3e. Did the Office of General Counsel issue a
written opinion on the following subjects:
(i) The validity of the ordered entered by former President
Bush on January 19, 1993, or the order entered by former EPA
Administrator William Reilly on January 20, 1993, establishing
a separate Region 11 for Alaska?
Response. Based on a thorough inquiry and review of our
files, to the best of our knowledge, the Office of General
Counsel did not issue a written opinion on this question.
(ii) The steps necessary to implement the order entered by
former President Bush on January 19, 1993, or the order entered
by former EPA Administrator William Reilly on January 20, 1993,
establishing a separate Region 11 for Alaska?
Response. Based on a thorough inquiry and review of our
files, to the best of our knowledge, the Office of General
Counsel did not issue a written opinion on this question.
(iii) The steps necessary to rescind the order entered by
former President Bush on January 19, 1993, or the order entered
by former EPA Administrator William Reilly on January 20, 1993,
establishing a separate Region 11 for Alaska?
Response. Based on a thorough inquiry and review of our
files, to the best of our knowledge, the Office of General
Counsel did not issue a written opinion on this question.
If so, please provide a copy of those opinions to this
committee.
Question 4. At the hearing, you acknowledged that President
Clinton has never revoked the order entered by former President
Bush on January 19, 1993, or the order entered by former EPA
Administrator William Reilly on January 20, 1993.
Why has the EPA not established a separate Region 11 for
Alaska?
Response. The proponents for establishing a separate region
for Alaska argue that the special geographic, climatic, and
economic conditions of the State require unique responses to
its environmental and public health conditions. A study
undertaken by EPA, Implications of Establishing a Regional
Office in and for Alaska, at the request of the Alaska
Department of Environmental Conservation and Senator Murkowski,
concluded that a proposed new region would not be cost
effective nor would it provide the advantages that the State
and others believed possible. After reviewing the report and
considering the concerns expressed by Alaska's elected
officials, its citizens, and State industry and environmental
groups, EPA determined that the issues which formed the basis
for the order to create a new Region could be more effectively
and efficiently satisfied through a variety of other means.
These included improving collaboration with the State in
developing program priorities, improving delivery strategies,
and modifying administrative structures. We believe these
strategic and administrative improvements have been effective
in addressing the unique circumstances faced by Alaska and have
eliminated the need for establishing a separate Regional Office
for the State.
Table.--R11 Estimated Costs Over a Four-Year Period
----------------------------------------------------------------------------------------------------------------
Category Year 1 Year 2 Year 3 Year 4 Total
----------------------------------------------------------------------------------------------------------------
Personnel compensation and 3,854,052 3,683,206 4,657,038 4,685,924 16,880,220
benefits (PC&B)................
Travel.......................... 283,100 101,900 133,500 133,500 652,000
Operating expenses, contracts & 2,258,100 833,100 1,018,100 1,023,500 5,132,800
support........................
Start-up costs.................. 5,787,500 2,290,100 2,085,200 1,837,200 12,000,000
-------------------------------------------------------------------------------
Total per year:............. 12,182,752 6,908,306 7,893,838 7,680,124 34,665,020
-------------------------------------------------------------------------------
Totals................... 12,182,752 19,091,058 26,984,896 34,665,020
----------------------------------------------------------------------------------------------------------------
Assumptions:
Costs do not include any inflation factors.
The RA's Office would be fully staffed the first year.
The support offices would not exist the first year, but would be phased in at \1/3\ total strength for
Years 2 thru 4.
The program offices would be at \1/3\ total strength the first year, \1/2\ strength the second year and
\3/4\ strength the third year.
__________
Statement of Michele D. Brown, Commissioner, Alaska Department of
Environmental Conservation
Chairman and members of the committee: I am Michele Brown,
Commissioner of the Alaska Department of Environmental Conservation. On
behalf of Alaska Governor Tony Knowles, I am pleased to testify that
the State of Alaska supports the bill before you to create a separate
region of the EPA for Alaska, which will foster a far more effective
Federal-state partnership to protect Alaska's environment and the
health of its people.
alaska's environmental challenges are unique and distinctive
Alaska is a national treasure. You have participated in the debates
over opening the Arctic National Wildlife Refuge, about timber harvest
levels in the Tongass National Forest, and over how to prevent and
improve response to oil spills such as the Exxon Valdez. There is great
passion in those debates. Alaska is America's proud symbol for
environmental purity and primal wilderness. It should also be America's
model for environmental management. Yet, the key Federal agency charged
in this country with environmental management has only a meager
presence in Alaska.
EPA's 1992 report entitled ``Implications of Establishing a
Regional Office in and for Alaska'' states that a new Alaska region
should not be established because no one wants to live and work in
Alaska. My 450 employees and I would like to tell you that when it
comes to environmental splendor and to the ability to practice creative
and meaningful environmental management, it simply doesn't get any
better than Alaska.
For public health and environmental challenges, and for the
opportunity to do development right, as Alaska's Governor Tony Knowles
requires, Alaska is where the rubber meets the road.
Issues range:
from addressing third world sanitation conditions in
hundreds of inaccessible, tiny communities in a State where there is
virtually no county or borough regional health management system, to
regulating the U.S.'s most sophisticated and complex oil development,
production and transportation system, one which yields 20 percent of
the U.S.'s oil production. Another 30 percent of the U.S.'s proven oil
reserves lies under Alaska's surface and we all know that Americans
will not tolerate drilling those reserves without assurances that it
can be safely managed.
from protecting the water quality that produces and
processes over 50 percent of the U.S.'s seafood production and houses
the largest seafood landing port in the U.S., while regulating the
discharges from the U.S.'s largest zinc and silver mines and the U.S.'s
leading placer gold and tin production mines.
from generating electricity from diesel engines for almost
all of Alaska's numerous remote villages, and all the mines and oil and
gas production facilities I just mentioned, because there is no other
available power source, while assuring air quality for two-thirds of
all the U.S.'s national parklands, the largest State park system in the
United States, and the U.S.'s largest national forests, as well as
preserving the vistas and fresh air quality for the 1.4 million
tourists who visit Alaska each year.
And, this all needs to be done over a land base that equals 20
percent of the United States. As you can see from the map, when
superimposed on the lower 48 States, Alaska extends north to south from
the United States-Canada border to southern California and, east to
west, from Tennessee to Texas and that's not even including the
Aleutian Islands.
Alaska shares no border with another State and at our closest point
is 2\1/2\ miles from Russia. Alaska has 7 ecosystems, including the
United State's only arctic and subarctic ecosystems. Alaska has 6,600
miles of coastline (3 times the coastlines of California and Florida
combined), 34,000 miles of shoreline, 3,000 rivers, 3 million lakes
over 20 acres each, and more wetlands than those in all the other
States combined.
Alaska's entire economic base--oil and gas, seafood, tourism, and
mining--depends upon its natural resources and its environment and how
well they are managed. And, our Nation too depends heavily on these
products.
Alaska needs strong and effective environmental management from our
Federal agency partners. Virtually all pertinent Federal agencies, with
the notable exception of EPA, recognize both the importance and the
difficulty in managing some of America's most important assets and have
Regional Offices in Alaska. This includes not just land management
agencies but also those with regulatory protection programs such as the
National Oceanic and Atmospheric Association, the Corps of Engineers,
and the Minerals Management Service. EPA alone tries to provide this
management from Seattle with a small operations staff in Alaska. Region
10 covers the largest geographic areas of any EPA region, yet has the
fewest staff of any region.
We believe that having a lean, but focussed EPA Region 11 can
accomplish far more in effective environmental management than the so-
called leveraging of its larger staff in Seattle.
It takes strong environmental management and standards to balance
competing demands on the environment and to protect Alaska's national
assets. Strong and effective management means setting priorities based
on sound risk assessments and tailoring management to real-time
conditions to produce on-the-ground, meaningful results. In the multi-
layered and increasingly complex Federal/State/tribe local system of
environmental management that has developed in this country, Alaska
needs a Federal partner that is aware of and can produce solutions
rather than rote and oft-times arbitrary applications of rules
developed for other circumstances.
I am not here to criticize EPA but to highlight a serious problem
in allocation of resources and attention. Let me explain why. I'd like
to give you four reasons and some brief examples:
first, alaska's environment needs more effective management
Despite efforts by EPA Region 10 to be more responsive in Alaska,
we have seen that managing for results simply does not work from a
Seattle office. EPA's Alaska operations office basically does direct
implementation of programs that have not been delegated to or are not
shared with Alaska's regulators. Consequently, my staff interacts with
Seattle 90 percent more than it does with the Alaska operations office.
It's quite frustrating to see State regulators and facility operators
troop to Seattle to meet with an EPA regulator who has never even
viewed the facility's site.
Unfortunately, Seattle staff too often have neither the knowledge
of Alaska's conditions and cultural diversity or the funds or time to
travel and study. Lacking that core understanding and a sense of the
big picture, they merely tackle what shows up on their desks. They do
this by adhering to tunnel vision one-size-fits-all solutions
prescribed in regulations and guidance while facing intense pressure
under a large Region 10 workload and trying to advance EPA headquarters
virtually endless assault of new initiatives. It's a hard job and one
that leads to wasted time and resources without producing environmental
results; and, at its worst, results in nonsensical situations.
Let me share some examples:
First, thousands of migratory birds die year after year in a
wetlands estuary outside of Anchorage due to poisonous phosphorous from
Army weapons. Two-thirds of Alaska is federally owned and managed, much
with left over contamination such as this from past management
practices. Yet, EPA, the Federal agency charged with preventing and
remediating fellow Federal agencies' actions, has virtually no presence
to address these hundreds of acres of contaminated wetlands.
At the same time, however, less than 15 air miles away, the
Anchorage sewage treatment plant has been through three years of
bureaucratic red tape to renew its permit in order to account for
naturally occurring conditions in the Cook Inlet waters. The so-called
``pollution'' being addressed is due to trace metals and high sediments
caused by the glaciers grinding up the local mountains. Despite
countless hours by EPA and Alaska's environmental staff, this permit is
still not done and, even when it is finished, it will not improve water
quality whatsoever.
Second, EPA imposed on Alaska an arsenic standard for point
discharges that was virtually impossible for any discharger to meet due
to naturally occurring arsenic in Alaska's waters. No arsenic was being
added in the mine process. This discharge standard was 300 percent
lower than the drinking water standard for arsenic. This meant that you
could dip a glass into a stream and drink the water. That was safe. But
if you didn't finish the water, you would not be allowed to pour it
back into the stream because it would violate the arsenic discharge
standard. It took four years to get this resolved while dozens of major
and minor mine permits were substantially delayed or went through
expensive, time-consuming paperwork processes to get around the
requirement. Again, there was no resulting benefit in water quality for
all this effort.
Third, Alaska has a desperate need for safe drinking water for
thousands of public water systems serving less than 500 people, most
located in isolated communities that lack any economic base. The
average annual income in a village in Alaska is $13,000. EPA is
generous with the construction funding granted by Congress, but the
community is expected to maintain the system at its own expense once
built. That's hard enough to do under the best of circumstances, but it
becomes nearly impossible when the community has to meet EPA
requirements that don't make sense in Alaska, such as testing for
contaminants never found in Alaska or having to repeatedly re-draw and
fly water quality samples to a lab because EPA rejects the results when
arbitrary sample holding times cannot be met due to distance and
frequent weather delays. Communities who fail these requirements don't
get help; they face fines.
In short, Alaska wants and needs effective management. We do not
want relaxed standards or to skate from requirements. But, neither do
we want to go through pointless activities that don't produce
environmental improvements. A Region 11 would allow Alaska to structure
compliance in a way that works and to target resources on what truly
engenders better environmental performance.
second, public health infrastructure programs must fit arctic
conditions
EPA's role in water, sanitation, and waste disposal infrastructure
development in Alaska villages is unique in the region, if not the
country, especially when you consider that there is virtually no road
access to the villages, transportation corridors are only open when
rivers aren't frozen, each village is autonomous, and system design and
operation require the most extreme arctic engineering. EPA's assistance
in funding construction is great, but its system management
requirements can be frustrating and an enormous waste of time due to
its lack of specific knowledge of Alaska's condition.
For instance, there's a new requirement that operators of small
drinking water systems be trained and certified. That's good, but it is
based upon a model that envisions that a single, certified operator
will be able to circuit ride from one drinking water system to the next
and serve as the certified operator for a number of systems in an area.
This works fine when the circuit rider can drive from one system to the
next and visit several systems in a day, but sure doesn't work in
Alaska, where traveling from one system to another can often take two
days, cost thousands of dollars in air fare, and involves overnighting
when there are no facilities. Despite the pleas from Alaska to have
alternative certification requirements, we're now scrambling to figure
out how to comply.
The national rules for State Revolving Loan programs for drinking
water and wastewater projects set the course for disbursing loan funds,
for construction times, and for costs based upon a 9- or 12-month
construction season. Those standards assume that materials can be
purchased nearby and relatively easily trucked to a construction site.
That simply isn't the case in Alaska. Even the best run, most cost-
effective projects often take longer and cost more in Alaska.
Further, there is a serious need to integrate the water and
wastewater system activities with other Federal agencies working in
same field: Housing and Urban Development, U.S. Department of
Agriculture-Rural Development, Army Corps of Engineers, and Indian
Health Service. It is critical to have master planning where housing,
energy improvements, sewage lagoons, and water and sewer systems are
all coordinated. All of these other agencies have key, decisionmaking
offices in Alaska. EPA does not.
third, tribal relations in alaska require more relevant participation
Alaska's cultural diversity--a 17 percent native population from
five distinct ethnic groups--and unique government to government tribal
relationships requires more attention and coordination than Seattle has
been able to offer. One-half of all federally recognized tribes are in
Alaska, yet only one has a reservation land base. EPA out of Seattle is
now forming environmental policy and passing large amounts of grant
funds to 228 tribes in Alaska in a way that may make good sense in the
other Region 10 States, but sure doesn't in Alaska.
For instance, EPA passed grant funds to tribes to collect and
recycle batteries and other household hazardous materials. That was
good in the other Region 10 States where there is both recycling
opportunities and a road system to move these materials. When the
village of Galena, located on the Yukon River, received funds to do
that, villagers collected the hazardous materials and then started
calling around to find someone to fly or boat hundreds of miles to pick
up the materials. When they couldn't find anyone to volunteer to do
that, the villagers dumped the batteries into the local, substandard
landfill that was being closed out and created a serious water
contamination threat.
As I previously mentioned, communities must operate and maintain
their water and wastewater systems after construction is completed.
This requires a community organization such as a tribal entity, a city
government, or a non-profit. Several times, EPA's tribal office has
passed funds to tribal entities to begin development of new water or
sanitation systems in communities where villagers are already
struggling to maintain a current system operated by a local government.
The result, in a community with a few hundred people, is duplicate
systems competing for ratepayers.
Facilitating the government to government relationship that EPA
promotes must happen in a knowledgeable and sensitive way. It cannot be
done by merely replicating activities undertaken with tribes with
reservations. Surely, when half of the tribes that EPA deals with in
the U.S. are in Alaska, a regional leader is critical to develop that
government to government relationship in a meaningful and effective
manner.
fourth, arctic contamination is becoming a serious threat to alaska's
ecosystems and the people who rely upon arctic resources
The Arctic is a sink capturing chemical coming from the former
Soviet Union and Asia. Heavy metals and persistent organic pollutants
concentrate in the Arctic due to air and water currents and persist
longer in the Arctic than in more temperate climates. These chemicals
accumulate in the ecosystem and, in particular, in fatty tissues in
animals. These threatened ecosystems are relied upon for subsistence
foods, for the seafood trade, and for traditional ways of life.
Northern people rely on fatty animal foods and there is now increasing
and frightening evidence of long-term health effects on Alaskans and
other Arctic peoples.
EPA is participating in Arctic research and management to address
these issues but in a fractured and uncoordinated fashion. Having a
regional focus on this issue would greatly assist the State Department
as it negotiates treaties on international management of these
pollutants, would be a more effective partner with the National Oceanic
and Atmospheric Association, the U.S. Fish and Wildlife Service and
other Federal agencies grappling with this issue, and could make
valuable information available to subsistence users on the quality of
their natural food sources.
funding region 11 doesn't have to negatively affect region 10
Those are some of the reasons why a Region 11 would make a positive
difference in promoting and effectuating meaningful environmental
management in Alaska. However, I know it must be cost effective and
must not lessen resources devoted to other Region 10 States.
EPA's 1992 report on costs--I do not know if that has been
updated--says 84 FTEs in Region 10 work on Alaska issues. It also says
that 40 FTEs could be removed from Region 10 without harm to other
States' coverage.
There are currently 30 positions on the books for the Alaska
operations office. Together, that makes 70 positions available for
Alaska work without compromising the Region 10 workload, pretty close
to the 84 EPA said work these issues already.
Somehow, however, EPA then adds about 130 percent more staff when
it says in that same report that it needs 180 FTEs to run a Region 11
office. Even if the 84 FTEs it cites as working on Alaska issues does
not include administrative or legal staff, surely a new Region would
not need 96 more staff for these functions.
Maybe it would take 180 positions to open an ideal regional office.
It would probably take a 130-percent increase to create an ideal Region
10 too. But, we're not asking for that. Rather, we're asking that an
Alaska-proportionate share be placed in a regional office that can make
knowledgeable, relevant decisions and be an equal voice as headquarters
develops rules and guidance on how to achieve compliance in ways that
make sense.
A thoughtful and gradual transition could ameliorate the costs.
This is especially true if, through a core task analysis, staff were
actually tasked with work that produced tangible environmental results.
We believe that a Region 11 can be created that would not have negative
consequences to the other Region 10 States.
conclusion
Alaska wants and needs a true partner to manage Alaska's national
treasures and provide a healthy quality of life for Alaskans. The best
government is the one closest to the people and Alaskans need our
Federal EPA partner to be present in a way that furthers rather than
frustrates our mutual goals.
Responses of Michele D. Brown to Additional Questions from Senator
Smith
Question 1. Your written testimony states that the EPA has pursued
several misguided policies in Alaska--such as requiring small Alaskan
communities to have duplicate drinking water systems.
Please identify specific examples of the problems that you have
found in working with the EPA. In giving examples, please address the
following matters:
(a) How long have these problems existed?
(b) Have you brought those problems to the attention of the EPA?
(c) If so, to whom in Alaska and in Seattle?
(d) If so, what was the EPA's response to your action?
(e) Is action by the EPA necessary to resolve those problems?
(f) If so, please identify what action is necessary; whether you
brought that action to the attention of the EPA; if so, to whom; when
that was done; and what was the EPA's response?
Response. The following are examples in several areas where EPA has
generated needless work or wasted limited, valuable resources due to
the lack of Alaska-specific knowledge.
water quality standards.
Arsenic--EPA imposed an arsenic standard for point
discharges that was virtually impossible for any discharger to meet due
to naturally occurring arsenic in Alaska's waters. No arsenic was being
added in the mine process. This discharge standard was 300 percent
lower than the drinking water standard for arsenic. The result, in
effect, was that you could dip a glass into a stream and drink the
water. That was safe. But if you didn't finish the water, you would not
be allowed to pour it back into the stream because it would violate the
arsenic discharge standard. It took four years to get this resolved
while dozens of major and minor mine permits were substantially
delayed.
Anchorage sewage treatment plant--the Anchorage sewage
treatment plant has been through three years of bureaucratic red tape
to renew its permit in order to account for naturally occurring
conditions in the Cook Inlet waters. The so-called ``pollution'' being
addressed is due to trace metals and high sediments caused by the
glaciers grinding up the local mountains. The permit was finally
completed after hundreds of hours of work for no improvement in water
quality whatsoever.
solid waste
Although courts have ruled that most Alaska tribes do not
have Indian Country, EPA Headquarters has mailed a number of letters
and publications to all 200+ tribes in Alaska concerning solid waste
management in Indian Country. These mailings were done without notice
to the State and resulted in considerable confusion, as the State has
jurisdiction over solid waste in most tribal areas.
EPA has issued solid waste grants to tribes without
notifying the State. In some instances, the work funded by these grants
duplicates work already being done by the State. In another instance,
the work funded by these grants increased the threat of environmental
contamination. EPA passed grant funds to tribes to collect and recycle
junk vehicles, batteries, and other household hazardous materials. That
worked in the other Region 10 States where there is both recycling
opportunities and a road system to move these materials. When the
village of Galena, located on the Yukon River, received a ``cleanup''
grant, villagers dutifully collected the hazardous materials and then
started calling around to find someone to fly or boat hundreds of miles
to pick up the batteries and dispose of or recycle them. When they
couldn't find anyone to volunteer to do that, the villagers disposed of
the batteries in the local, substandard landfill. This landfill was in
the process of being closed out and the additional hazardous material
created a serious water contamination threat.
drinking water and sewage disposal
Alaska has a desperate need for safe drinking water for
the thousands of public water systems serving less than 500 people,
most located in isolated communities that lack any economic base. The
average annual income in a village in Alaska is $13,000. EPA is
generous with construction funding but the community must maintain the
system at its own expense. That's hard to do under the best of
circumstances but even more so when limited dollars have to be spent
testing for contaminants never found in Alaska and repeatedly re-
drawing and flying water quality samples to a lab because EPA rejects
the results when arbitrary sample holding times cannot be met due to
distance and frequent weather delays. Communities who fail these
requirements don't get help; they face fines.
EPA has imposed a new requirement that operators of small
drinking water systems be trained and certified. That's good, but it is
based upon a model that envisions that a single, certified operator
will be able to circuit ride from one drinking water system to the next
and serve as the certified operator for a number of systems in an area.
In Alaska, traveling from one system to another can often take two
days, costs thousands of dollars in air fare, and involves overnighting
when there are no facilities. Despite the pleas from Alaska to have
alternative certification requirements, we're now left scrambling to
figure out how to comply or face loss of construction funds.
The national rules for State Revolving Loan programs for
drinking water and wastewater projects present another set of problems
for Alaska. For example, national standards for the pace of disbursing
loan funds, for construction times, and for costs envision a 9- or 12-
month construction season. Those standards assume that materials can be
purchased nearby and relatively easily trucked to a construction site.
That simply isn't the case in Alaska. Even the best run, most cost-
effective projects often take longer and cost more in Alaska.
Question 2. You recommended that the EPA create a separate region
for Alaska, while the EPA believes that the special needs of Alaska can
be addressed by devoting more resources to Alaska's needs. Please
explain in detail why the problems and needs of Alaska can be addressed
only (or better) through the creation of a separate Region for Alaska,
instead of (for example) increasing the number of EPA employees devoted
to Alaska's issues, either in Alaska or in Seattle.
Response. EPA's Alaska operations office implements programs that
have not been delegated to or are shared with Alaska's regulators.
Although EPA claims that the Alaska operations office has more staff
than any other State operations office, my staff interacts with Seattle
90 percent more than it does with the Alaska operations office. It's
quite frustrating to see State regulators and facility operators troop
to Seattle to meet with an EPA regulator to discuss a site never viewed
or understood. In the last fiscal year, DEC employees spent over 120
work days in Seattle meeting with Region 10. Even when we do work with
EPA's Alaska office, it is often ``overruled'' by Seattle staff.
Question 3. One argument against having a separate Alaska office is
that having such an office is inefficient, because of the separate
infrastructure needed for a separate EPA Regional Office. Please
address that concern. In so doing, please address the following issues
as well:
(a) Based on your experience with your own agency, what personnel
would be necessary to establish a separate Alaska region?
(b) What would be the cost of creating separate Alaska region cost?
In making an estimate, please address both the cost from immediately
staffing an EPA regional office fully and the cost from doing so
gradually.
(c) To what extent can the EPA hire from Alaska new employees in
whatever scientific and technical fields are necessary to staff a
regional office?
(d) How much additional time and resources would you and your staff
have to serve Alaska better if there were an EPA Regional Administrator
located in Alaska, instead of in Seattle?
Response. If efficiency is measured in terms of genuine
environmental protection and the quality and relevance of EPA's
decisions, opening a separate Alaska region will increase efficiency.
Being closer to the regulated resources and activities will increase
the amount of time staff can spend directly on protection activities
and reduce the amount of time required to gather information or correct
misguided policies.
We believe that having a lean, but focussed Region II can
accomplish far more in effective environmental management than the so-
called leveraging of its larger staff in Seattle. Local expertise and
knowledge about Alaskan conditions should increase efficiency as less
time will be spent heading down wrong paths. More relevant decisions
will mean less time spent on reviews and appeals.
EPA's 1992 report entitled ``Implications of Establishing a
Regional Office in and for Alaska'' states a new region should not be
established because no one wants to live and work in Alaska. Despite
their claims to the contrary, however, many people enjoy living in
Alaska--especially people with an environmental background. The
stability and possibilities for advancement that EPA offers should be
sufficient to find technically well-qualified applicants with
specialized knowledge and experience in Alaska's unique conditions.
EPA's earlier report on costs--I cannot comment on its updated
version since I haven't seen it--says 84 FTEs in Region 10 work on
Alaska issues. It also says 40 FTEs could be removed from Region 10
without harm to other States' coverage. There are currently 30
positions on the books for the Alaska operations office. Together, that
makes 70 positions available for Alaska work without compromising the
Region 10 workload, pretty close to the 84 EPA said work these issues
already.
Somehow, however, EPA then adds about 130 percent more staff when
it says it needs 180 FTEs to run a Region 11 office. Even if the 84
FTEs it discusses earlier does not include administrative or legal
staff, surely the Region would not need 96 more staff for these
functions.
Maybe it would take 180 positions to open an ideal Region. It would
probably take a 130 percent increase to create an ideal Region 10 too.
But, we're not asking for that. Rather, we're asking that an Alaska-
proportionate share be placed in a regional office that can make
knowledgeable, relevant decisions and be an equal voice as headquarters
develops rules and guidance on how to achieve compliance in ways that
make sense.
A thoughtful transition could ameliorate costs and impacts. This is
especially true if, through a core task analysis, staff were actually
tasked with work that produced real results rather than bean counting,
creating Region 11 would not have negative consequences to the other
Region 10 States.
Question 4. Why is Alaska better off with a separate EPA Region,
instead of (for example) just having more EPA personnel stationed in
Alaska and more funds distributed to Alaska?
Response. Please see answer to question 2.
Question 5. Please address the following proposition: Alaska needs
to be a separate Region with its own Regional Administrator because
only a political appointee, drawn from the State and having the same
status as the other EPA Regional Appointees, will have sufficient
awareness of the unique features of Alaska best to address the
environmental issues that arise in your State, as well as sufficient
political muscle to represent Alaska's interests to EPA Administrator
and to obtain for Alaska the needed personnel and fiscal resources from
the scarce funds available to environmental protection.
Response. Our experience is that EPA is a bureaucratically bound
agency rife with second guessing by the regional office over the State
operations office and by headquarters over the regions. Because of
this, even relatively simple issues suffer from paralysis by analysis.
A recent letter from Alaska's Governor took over 6 months for a reply.
It is necessary to have a Regional Administrator with an equal
amount of ``clout'' inside the organization to even be heard. Over the
last several years, Region 10's Administrator has been a great
resource, but he has to choose carefully which of the many Region 10
issues he can take on with headquarters. Alaska's issues often don't
make the list. Furthermore, a Region 11 Administrator could weigh in
very early in a regulations project to ensure that Alaska-specific
problems are appropriately addressed, and the result is achieved in a
way that makes sense, rather than waiting for State comments which EPA
too often discounts.
Question 6. Some people may fear that creating a separate Alaska
Region will lead to the despoliation of Alaska's lands, including its
wilderness. The argument that could be made is that an Alaska Regional
Administrator will become too friendly with Alaska's businesses,
particularly Alaska's oil businesses, to regulate business effectively.
What is your answer to that concern?
Alaska's entire economic base--oil and gas, seafood, tourism, and
mining--depends upon its natural resources and its environment and how
well they are managed. Alaska wants quality environmental management. A
Region 11 will foster a far more effective Federal-State partnership to
protect Alaska and its people. In short, we do not want relaxed
standards or to skate. A Region 11 would allow Alaska to structure
compliance in a way that works.
It takes strong environmental management and standards to balance
competing demands on the environment and to protect Alaska's national
assets. Strong and effective management means tailoring management to
real-time conditions to produce on-the-ground, meaningful results. In
the multilayered and increasingly complex Federal/State/tribe/local
system of environmental management that has developed in this country,
Alaska needs a Federal partner that is aware of and can produce
solutions rather than rote and oft-times arbitrary applications of
rules developed for other circumstances.
Statement of Ken Freeman, Executive Director, Resource
Development Council
Good morning. My name is Ken Freeman, Executive Director of the
Resource Development Council (RDC). I am a life-long, fourth-generation
Alaskan. I am here before you today to express RDC's support for S.
1311.
RDC is an Alaska statewide organization consisting of all resource
sectors, including oil and gas, mining, fishing, tourism and forestry.
Our membership also includes business associations, labor unions,
Native corporations, local governments and hundreds of individuals.
RDC's purpose is to encourage a strong, diversified private sector in
Alaska and expand the State's economic base through the responsible
development of our natural resources.
Historically, RDC has supported the creation of an EPA regional
office focusing exclusively on Alaska and there is consensus among our
members on the merits of establishing an EPA region specific to Alaska
Alaska has always provided unique challenges for both industry and
Federal regulators. Alaska is a State of vast physical dimensions.
Covering 375 million acres, it stretches over 2,000 miles from west to
east and over 1,000 miles from north to south. Alaska is one-fifth the
land mass of the United States. With 10,000 miles of coastline, Alaska
has more salt water shoreline than the entire continental United States
combined. It is the only State with an Arctic and Sub-Arctic
environment. We have more wetlands, more sensitive ecosystems and more
need for specialized management than any other State. Special
circumstances present special problems that demonstrate the need for an
EPA region for Alaska.
Oil production from Alaska accounts for nearly 20 percent of all of
the oil produced in the U.S. Yet, Alaska is the only State within EPA
Region 10 that has oil and gas exploration and production. Given the
importance of Alaska oil to the nation's energy security, it is
imperative that agencies have an in-depth understanding of oil and gas
exploration and production operations, and specifically operations
conducted in extreme arctic conditions. Although Alaska is large in
size, it is small in population and industries; as such, the focus of
Region 10 employees expertise often-times is on industries and
conditions in the Pacific Northwest--not on upstream oil and gas
operations--and certainly not on operations conducted in extreme Arctic
conditions.
An excellent example of EPA programs uniquely impacted by these
operating extremes, and why it is critical that agency personnel have
the appropriate level of understanding of Alaska, is the NPDES Storm
water program. This program requires sampling following storm events if
runoff from facilities reaches waters of the U.S. Virtually all of the
North Slope is classified as wetlands--and therefore ``waters of the
U.S.'' Facilities are often located in very remote areas with no road
access. And ``storm events'' usually occur in the dead of winter when
temperatures can reach -80 degrees, producing a serious safety
situation. Without a thorough understanding of these factors, it is
difficult to convince Seattle-based regulators that programs and
permits must be adjusted to be workable in Alaska.
Alaska faces special challenges like no other State when it comes
to regulating development on wetlands. Because of a broad Federal
definition, nearly half of the State's land area is considered
wetlands, accounting for three quarters of the State's non-mountainous
developable land. Virtually all development--from schools, hospitals,
and roads to public water and sewer systems--requires using lands
regulated as wetlands. In Alaska wetlands cannot be avoided. Dry land
is scarce.
While many States like California have developed most of their
wetlands, Alaska has achieved its current level of development while
preserving 99.9 percent of its wetlands. Yet the 49th State must comply
with a Federal wetlands policy designed to be a solution to the
alarming loss of wetlands in other States. The policy has presented
major economic and permitting challenges in Alaska. While Federal
regulators may flash statistics showing a small percentage of rejected
permits, those records do not reveal the numbers of permits voluntarily
withdrawn by a project sponsor--and sometimes at an agency's request.
The establishment of a Region XI office in Alaska would bring
opportunities for Federal regulators to become more familiar with
Alaska wetland issues and unique circumstances. Regulators based in
Alaska, with decision-making power, are more likely to respond to local
realities and the need for flexibility in permitting, especially
considering the fact that many Alaska wetlands are very different than
those in the Lower 48, especially in terms of critical functions and
value.
While EPA does have staff based in Anchorage with representatives
elsewhere, decisions vital to Alaska's environment and economy are
largely driven by Region's X's Seattle headquarters. In reality, the
local office simply does not have the latitude to implement creative
solutions. Decisions are made by Seattle regulators who do not fully
understand the unique environmental characteristics and special
circumstances which prevail in Alaska. As a result, Alaskans face
longer delays, some questionable or inappropriate decisions and limited
field knowledge.
The EPA has made some improvements in Alaska, but much more remains
to be achieved and it would be best accomplished through a new regional
office. The new EPA region would have increased opportunities to build
knowledge based on first-hand observation of Alaska conditions. As the
new Region's primary focus, Alaska would get more policy-level
attention than it would from a regional office serving three other
States with conditions much different than Alaska.
Another issue which doesn't reflect realities found in Alaska is
the Clean Air Act. For example, the geography and winter climatic
conditions found in Fairbanks creates an extreme atmospheric inversion
unlike anywhere else. As a result, Alaska's second largest city has a
greater inversion problem than not only Los Angeles, but perhaps
anywhere in the world. In previous years, the EPA regional director
threatened to close downtown Fairbanks to autos because of high carbon
monoxide levels recorded during the winter inversions.
In the fall of 1992, the EPA required the additive MTBE (methyl
tertiary butyl ether) in local gasoline supplies, but then-Governor
Walter Hickel ordered the program stopped less than two months after it
began, and the EPA backed off after admitting it had done nothing to
test the effectiveness and health effects of MTBE in cold climates.
The city has made progress in complying with air quality
regulations, but despite its best efforts, Fairbanks still exceeds
national standards at least three days per year, two more than allowed.
But that's a big improvement over previous years when Fairbanks was out
of compliance on dozens of days each year. Yet despite major progress,
the community is at risk of losing Federal funding and faces other
punitive sanctions if it does not come into compliance. According to
local officials, there isn't much else the community can do--short of
impounding every vehicle in Fairbanks and forcing people to walk to
work in 50 below zero temperatures.
Alaska is truly different than the Lower 48 States. Its weather,
remoteness, vast distances, and special Arctic conditions such as
permafrost, glacier till and high background levels that contribute to
higher metals in rivers, set Alaska apart from other States. Frankly,
Alaska has very little in common with its neighbor 2,000 miles to the
south. Washington State, the home base of EPA's Region X, is more like
its neighboring States, Oregon and Idaho, than Sub-Arctic and Arctic
Alaska.
Establishing an Alaska EPA region does not set a precedent since
eleven other Federal agencies have fully staffed offices in the 49th
State specifically dedicated to Alaskan issues. These agencies range
from landlords like the U.S. Forest Service to others like the EPA with
specific oversight and regulatory functions, including the Army Corps
of Engineers, the Bureau of Indian Affairs, Federal Aviation
Administration and U.S. Geological Survey.
Many Alaskans believe Federal and State regulators could do a
better job of addressing our environmental challenges when decision
makers are based in Alaska, together, rather than formulating policy
and implementing regulation by telephone or air shuttle from Seattle.
Having a regional EPA office in Alaska would overcome distance,
communication and coordination problems. It would also quite likely
improve the agency's responsiveness to specific permitting needs.
For example, the Chuitna Project, a ``green field'' coal
development located in the Beluga Field of Southcentral Alaska, has had
two significant engagements with Region X. One involved preparation of
a third party EIS and the other required processing the renewal of
NPDES permits. In the first circumstance, Region X was the lead agency
with the Army Corp of Engineers Regional Office in Anchorage being the
cooperating agency. The third party was an Anchorage contractor, Dames
and Moore. With the EPA Regional Office located some 1,500 miles from
the contractor, the project and the cooperating Federal agency, the
project developer encountered significant communication and
coordination problems, many of which could have been avoided if all the
participants would have been located in Alaska
In the second instance, the project developer has had an
application for renewal of four NPDES permits on file with Region X for
approximately five years. The original permits were issued in 1990
after publication of a Final Environmental Impact Statement. In spite
of several initiated contacts by the project developer, no response has
been received from Region X on renewal of the permits. Here again, were
the permitting office located closer to where the ``action'' is, the
agency would most likely be more responsive.
Another example of why a new Alaska EPA region is needed comes from
the timber industry. At issue is recent permitting for a general permit
on Log Transfer Facilities (LTFs). There was a huge and unnecessary
amount of time that was required to work through the process. Region X
regulators from Seattle apparently did not fully understand the unique
challenges posed by the remoteness of Alaska and the isolation of the
LTFs. Regulators actually requested street addresses and towns for the
LTFs. They asked for road directions to the sites. They didn't
understand that these facilities were located far from local
communities and that there were no roads, no services, no
infrastructure--just remote, isolated wilderness accessible by aircraft
or boat. It took the permittee months to get all the logistical issues
resolved. The permittee noted that Region X regulators showed little
trust toward those in Alaska they were regulating and did not have a
reasonable understanding or sense of the magnitude of Alaska, its
remoteness and unique characteristics.
A new Region XI office could go further than a local branch office
with limited latitude, staffing and capabilities in overcoming these
challenges and developing a much-needed northern and arctic expertise
in wetlands management, permafrost, ice fog, NPDES permitting and other
issues. A Region XI office could better respond to Alaska's special
problems with Alaska solutions. The establishment of an EPA region
specific to Alaska would be a major step toward achieving the goal of
ensuring that Federal regulations applied in Alaska reflect Alaska
realities.
A current issue making headlines in Alaska is the State's rights in
respect to its air permitting program. Alaska cannot administer a
viable air permitting program if EPA's Region X office in Seattle
continues to summarily overrule carefully made decisions that take into
account Alaska's unique circumstances.
The Alaska Department of Environmental Conservation's (ADEC) has
appealed a recent order by EPA prohibiting the issuance of a Prevention
of Significant Deterioration (PSD) permit for a diesel generator at the
Red Dog Mine in Northwest Alaska. This permit is vital and necessary to
Cominco Alaska's operation at the world's largest deposit of zinc. The
generator will have a negligible environmental impact.
ADEC has an EPA-approved State program for issuing PSD permits.
This approved program gives ADEC full permitting and discretionary
authority over PSD permits for the State of Alaska.
Our members across Alaska, from resource developers to local
communities, need to be able to rely on ADEC's decisions on air permits
and to be able to proceed based on those decisions. The EPA Region X
action at Red Dog is alarming because of the harm it may cause our
members in planning for new or modified air permitting to meet their
needs. The uncertainty or nullification of the State's PSD program
would likely have adverse economic effects on Alaska. Permitees, unsure
of the reliability of the State's process, will wonder if EPA's Seattle
office can nullify a permit at any time, thus delaying projects until
PSD authority has been defined.
If EPA has the power to summarily overrule ADEC's permit decisions
and demand additional measures beyond what has been determined
sufficient by ADEC, then our members in effect would be forced to
permit their projects a second time through EPA.
Cominco Alaska and ADEC spent an exhaustive 18 months working on
the permit for this engine, resulting in a determination that Low NOx
Technology was Best Available Control Technology (BACT). Cominco Alaska
even agreed to install Low NOx technology on all of the existing
engines not requiring permits. In short, ADEC is requiring more Best
Available Control Technology in this PSD permit on these engines than
EPA or any other State has ever required on any other diesel
generators.
To develop the permit, Cominco Alaska and ADEC held meetings every
other week for over a year. These discussions often centered on the
Best Available Control Technology decision for the diesel-fired
generators. Because Selective Catalytic Reduction (SCR) provided the
greatest decrease in nitrogen oxides (NOx) emissions, ADEC
staff strongly pursued determining SCR to be Best Available Control
Technology for the Red Dog Mine diesel-fired generators.
However, according to EPA guidelines, the Best Available Control
technology determination is not solely based on pollution control
efficiency, but must also consider energy, environmental, and economic
factors. The selection of SCR for the Red Dog Mine would not have been
similar or comparable, as required, to the economic imposition placed
on other, recently permitted diesel-fired engines. In fact, with the
exception of one demonstration unit, SCR has not been required on any
diesel-fired engine in the United States except in areas where an
ambient health standard is being exceeded.
Cominco Alaska and ADEC noted that the cost of implementing SCR at
the Red Dog Mine would be prohibitively expensive. Additional concerns
related to the use of SCR at Red Dog include the loss of waste heat
availability to provide building heat and the lack of a demonstration
proving that SCR is reliable control technology for diesel-fired
engines in an Arctic environment.
Furthermore, the high cost of SCR was not justified because the
predicted ambient nitrogen dioxide (NO2) impact was less
than one third of the ambient air quality standard that was adopted to
protect human health.
As a result, ADEC determined Best Available Control Technology for
the diesel-fired generators at the Red Dog Mine would be the Low NOx
Technology. Prior to issuing a final permit, but after the public
review process, EPA contacted ADEC to inform them that Region X
objected to the determination. EPA also informed ADEC that it would
issue an order against the State if ADEC did not change the
determination to require SCR. Several months of discussion among EPA,
ADEC and Cominco Alaska then followed. After this discussion, ADEC
resumed the process of issuing the final permit because EPA had not
convinced ADEC that SCR was justified. That final permit required Low
NOx on the new engine and also required, through the voluntary
agreement, Low NOx on all other existing powerhouse engines, bringing
those engines up to current standards in pollution control technology.
Just prior to issuance of the final permit, EPA issued an order
prohibiting the issuance, or requiring retraction, of the permit unless
SCR is implemented. ADEC, acting under their EPA-approved authority to
use their own discretion in determining Best Available Control
Technology, decided that EPA's order was not legally valid and issued
the permit. In a written request, ADEC asked EPA to retract the order.
EPA refused the request. ADEC then filed a petition for review with the
U.S. Ninth Circuit Court of Appeals where the issue now resides.
This issue is not only a battle between agencies on Clean Air Act
jurisdiction, but it shows once again how a distant EPA region does not
fully understand Alaska's circumstances. The Red Dog Mine sits in
complete isolation, far removed from any community. It is not connected
to Alaska's road system and there are no air quality concerns,
especially given its location.
In concluding, a specific Alaska region would allow EPA to work
closer with Alaska regulators and other Federal agencies on many
critical issues ranging from wetlands management to NPDES permitting.
NPDES permits issued from an Alaska regional office would be more
efficient and reduce the backlog of applications in Region X. While it
would be wrong to imply that Region X is doing a poor job in respect to
Alaska issues and concerns, Federal decision makers in Seattle and
Washington are relatively insulated from Alaska realities. An Alaska
region is a better option for implementing solutions that protect
Alaska's environment while supporting the State's economy.
Thank you for the opportunity to testify on the merits of
establishing a separate EPA region for Alaska.
__________
Statement of Melanie L. Griffin, Director of Lands Protection Program,
Sierra Club
The Sierra Club is opposed to the bill, S. 1311, put forward by
Senator Frank Murkowski (R-AK) to direct the Administrator of the
Environmental Protection Agency (EPA) to establish a separate EPA
region for the State of Alaska. While the idea of a separate Alaska EPA
region may seem appropriate given Alaska's size and its distance from
the contiguous United States, we believe that the proposal is neither
cost-effective, nor equitable, nor necessary given the administrative
structure already specially tailored to address the needs of our 49th
State.
The Sierra Club agrees that the great State of Alaska has unique
and varied natural resources that deserve the highest level of
protection. In fact, protecting the unparalleled landscapes of wild
Alaska has long been a top priority for Sierra Club members. Because
Alaska's abundant clean water and air are vulnerable to ever expanding
oil and gas exploration and other extractive industries, we also agree
that the State could benefit from additional on-the-ground personnel
and oversight. However, the political environment in Alaska indicates
that a new Alaska EPA region would not be in the public interest at
this time.
Establishing a new Alaska EPA region would be imprudent given the
hostile attitude towards national environmental goals, policies, and
regulations on the part of the majority of elected Alaska officials at
the local, State, and national levels. In addition, numerous large and
politically influential national and multi-national corporations
involved in the exploration and development of Alaska's natural
resources tend to oppose EPA policies and regulations in Alaska.
To establish an Alaska EPA region under these circumstances would
deprive Alaska EPA decision-making officials of the appropriate degree
of insulation and protection from undue political pressure that they
now have as part of the Northwest Regional Office. Northwest region
officials, operating in a political setting where environmental
protection enjoys widespread support among elected officials and the
public, are able to support their Alaska colleagues as national
policies and regulations are applied in Alaska. An Alaska regional
office, cut-off from the EPA Northwest Region, would be more vulnerable
than at present to direct pressure and interference by Alaska
development interests and their elected supporters. EPA's mandate to
protect the public health and environment in Alaska would be made more
difficult.
EPA has previously studied the proposal to create an 11th region
for Alaska and determined that it was not cost effective. The Sierra
Club believes that the tremendous costs involved in the establishment
of a separate region are unwarranted. The proposal also raises
questions as to fairness to other States, as the ranking member from
Montana has raised in his own statements during the hearing.
In the interest of protecting Alaska's abundant clean air and
water, Congress should not agree to the proposed change in the existing
EPA organizational structure.
We recommend that no further action be taken on S. 1311.
Thank you for considering our views.