can be protected, and then say to the states, look, you're the laboratory. if you can do more, fine. but protect them to at least a minimum level, and that's been the way i have viewed this job. that's why when we preempt states on this, i think it's a terrible thing to do. and i have shown that through, you know, my whole career. but again, i want to say thank you, whether you agree with me or not. i know two do and three don't, something like that but i'm very happy to see all of you here. >> thank you senator boxer. senator boseman would you like to introduce your guest from arkansas? i already told her i was about half hog and explained the genesis of that statement. >> in the interest of time i just want to thank her for being here and thanks for the

tremendous job he is doing in arkansas and we're grateful to have her on board and like i said we're pleased that you're here and all that you represent. thank you. >> thank you, senator boseman. we're going to start with you, ali. i'm going to follow the direction of senator carper and take your short name, all right? you are recognized. >> chairman and house ranking member boxer and members of the committee my name is ali mirzakhalili, delaware's director of air quality. i thank you for the opportunity to testify today. i would like to share with you delaware's view of the respective roles and responsibilities of the epa, state and the u.s. congress with respect to complying with various environmental statutes and associated regulatory actions to protect public health and environment. the clean air act has been a huge success, preventing literally hundreds of thousands of premature deaths as well as averting millions of incidents and mobility. the health benefits associated with the clean air act far outweigh the cost of reducing pollution for more than 30:1. moreover we have accrued health benefits over the same periods as the gross domestic product has grown. it's fair to say the clean air act has been one of our nation's most effective and environmental

statutes it's like to go down in history as the most effective domestic laws ever passed. the public generally does not differentiate between levels of government. it simply expects the entire system to work. therefore it is imperative that each power of government, epa, congress and the states, fulfill its respective roles and perform as effectively as possible. as i state in my written statement, i believe epa can best fulfill its role by focusing on six important tenets, one using sound science to set national standards. two, providing states flexibility to meet those national standards. three, issues guidelines and rules in a timely manner. four, ensuring that states are held accountable for their actions. five, providing a level playing field. six, setting standards for sources of pollution that are of

national significance and where states may be preempted from doing so. congress also has a major responsibility in environmental protection, including most importantly ensuring that it provides adequate funding to epa and the states to assist in meeting our nation's clean air goals. unfortunately, in recent years, congress has fallen short in this respect. the clean air act authorizes the federal government to provide grants for up to 60% of the cost of state and local air pollution programs and calls for states and localities to provide a 40% match. unfortunately, this has not been the case. state and local responsibilities have expanded significantly since 1990. while the grants have not, resulting in delaware and most other states self-funding over 75% of their air program's operating budget. the states are trying to do their best to comply with all epa rules and regulations under the clear air act.

in delaware i'm proud to say we are meeting all of our clean air act obligations. it is likely to go down in history as one of the most effective domestic laws ever passed. the public generally doesn't differentiate between levels of government. it expect it is system to work. therefore it is imper ty each part of government, epa, congress and the states wille fill its roles and perform as effectively as possible. as i state in my written statement i believe epa can focus on six tenets. one, using sound science to set national stads, two, providing states flexibility to meet those standards. three, issuing guidelines and rules in a timely manner. four, en suring states are held accountable for their actions. five, providing a level playing field. six, setting standards for sources of pollution that are of national significance and where states may be preempt ed from doing so. most importantly, ensuring that it provides adequate funding to epa and the states to assist in meeting our nation's clean air goals. unfortunately in recent years congress has fallen short in

disrespect. the clean air pact authorizes the government to provide grants for up to 60% of pollution programs and calls for states and localities to provide a 40% match. unfortunately this has not been the case. state and local responsibilities have expanded significantly since 1990. while the grants haven't resulting in most states self-funding over 70% of the operating budget. despite these challenges states are trying to do their best to comply with epa rules and regulations under the clean air act. in delaware i'm proud we are meeting our clean air act obligations. we succeed by being proactive, collaborative and focusing on limited resources so as to ensure control. this year states face a number of important deadlines under the clean air act. they do not differentiate between large states with ample resources and small states like ours with fewer resources. i believe delaware's practice of ensuring all emitting sources are appropriately controlled is key to our ability to manage this in light of insufficient funding. if we can do it, so can others. because of delaware's efforts to maintain compliance with earlier standards, those efforts aren't wasted and delaware is complying with the 2012 standards and is subject only to the first of the three sulfur dioxide requirements. these do not represent an manageable workload for 2016. we are continuing to work this year to reduce greenhouse gas emissions.

this year delaware will continue work under the greenhouse gas initiative and prepare the state's strategy under the clean power plant. i believe the cpp is an excellent example of how epa is thoughtfully and successfully working with states to craft achievable, flexible rules. delaware continues to experience poor air quality and impacts from ozone and public health and the economy. delaware's emissions control efforts to reduce ozone precursor emissions resulted in a situation where over 90% of the ozone concentration adversely affecting delaware is attributable to emissions transported into the states. under the clean air fact more than five years ago. if they have not done so. in some cases the problem is that sources haven't controlled their emissions. in others appropriate controls have been installed but incredibly aren't being operated. to increase epa resources to enable the agency to ensure equity would greatly help delaware and others in similar situations. thank you for the opportunity to testify. i look forward to answering questions. >> thank you. ms. markowicz. >> good morning, all. i'm the secretary of vermont's agency of natural resources. i know senator sanders wasn't in florida he would be introducing me today. thank you for inviting me to testify in cooperative federalism and environmental regulation. vermont is a regulated state so we take responsibility for the oversight and implementation of federal environmental programs. we implement the resource conservation and recovery act, clean water act and the national pollution discharge elimination system permit program. the clean air act and safe drinking water act. vermont chose to take on these

federally delegated programs. epa didn't force us to do so. the federal government did require it. vermont chose to take responsibility to implement these important regulatory programs in our state because we know how important they are to vermonters health, safety and prosperity. not only do we rely on clean air, clean water, and clean land to protect the health el of our people. vermont has a land-based economy. our top industries include tourism, agriculture and forestry. each relies on a clean, healthy and natural environment . people come from all over the world the fish in our rivers, swim in our lakes, hike and ski. this isn't all. in the manufacturing and high tech sectors, indeed every sector of business and industry in vermont it is the natural beauty of state and the pristine environment that enables us to attract good jobs and high quality employees to stay or relow indicate in vermont. vermont can ensure the state's

protected through regulation, assistance and enforcement. this control is even more important in light of the highly charged political dialogue that our environmental laws and regulations here in washington. while new rules promulgated by epa take time and effort to implement in the states there are good reasons to support a strong approach. first we look to epa for the expertise to study and develop the science and technology. we could not meet our mission to protect human health and safe guard the natural environment without this important federal contribution. second we see value in having national standards for environmental protection. as the children in rutland, vermont who suffer from asthma and anglers who can't eat the fish they catch because of mercury pollution know well it doesn't know state lines. vermonters as well as all americans have come to depend

upon them. finally national environmental regulations provide an even playing field among states helping to prevent a regulatory race to the bottom in a misguided attempt to attract economic development. it is important to acknowledge the system of coregulation between epa and the states is not always simple or without a natural attention. there are times to address a problem differently than it was approached in the past and when the federal approach they have unintended consequences for us in vlt because of the small size and character. in situations like these, we found epa willing to listen to our concerns and work with us to find a solution. on numerous occasions and across

sectors the epa supports the efforts to protect the environment. epa has allowed flexibilitile in vermont's program implementation, cooperated with us to achieve our shared environmental goals, included vermont's voice in efforts to develop new rules and standards and shared resources and expertise to help us more efficiently and effectively implement our programs. in my written testimony i have included a number of specific examples that would be helpful. in closing i want to reiterate the value of the relationship with epa and that for vermont this partner is essential to protect our environment and the health of our citizens and exemplify federalism. i'm happy to take questions. thank you. >> thank you. >> good morning. thank you for the opportunity to address this concern of federalism and environmental regulation.

as the chief environmental regulator i view the cooperative partnership as critical. according to the environmental council of the states over 95% of the environmental regulatory duties in the country are carried out by the states. congress placed the most important core responsibilities with the states because they are far more responsive to local concerns and aware of the environment than distant bureaucracies. in addition states must be cost effective, have balanced budgets and perform in the face of flat or declining revenues. it is within these constraints that they have demonstrated not only we are up to the challenge but that we continue to deliver the results congress envisioned when it created our environmental framework within the model. unfortunately federalism has been less than cooperative with epa and intier yors office of surface money. there is new regulation, guidance and initiatives from federal agencies and much of it encroaches on the authority congress gave to the states. nearly all of it adds new regulatory burdens to state

resours already stretched thin. at best epa and osm are indifferent to the mounting consequences of their actions. at worst we see federal agencies continue to basically rewrite the nation's environmental acts with no accountability. time will only permit me to cover a few. my first example was one with which we were all familiar. regardless of the physician, individual states take on climate change. section 111-d of the clean air act put it is states, not epa in charge of developing standards of performance. with little regard to the role congress gave it epa seized the state's authority. its carbon rule establishes the minute details of one of the most complex initiatives in the history of the clean air act. epa is establishing what amounts to rules through guidance. states are expected to perform to the results of the process as

if epa had promulgated a valid rule. there are two problems with this. epa guidance further eliminates discretion and allows them to avoid accountability and transparency. the final examples relate to similar actions by interiors office of surface money. the protection rule which i he have testified about in october is another example of a federal agency attempting to rewrite part of an act of congress with no mandate to do so. they further failed so involvele the states which have promised to carry out the duties. the result is a proposal with multiple unlawful conflicts with federal and state clean water laws. in fact, since 2009 west

virginia has submitted nine amendments to the office of surface mining for consideration. only those that propose to increase fees or taxes on the mining industry have been approved. only then on an interim basis. my last example is osm's misuse of ten-day notices to correct defects. ten-day notices are an onlile investigation under the surface mining act to notify the states when a mining violation is suspected and has not been properly addressed. it is clearly an enforcement measure to be applied to active operations. in 2009 osm was directed to use this regulatory tool to correct deficiencies in state issued permits which is clearly contrary to the surface mining act. most states including west virginia embraced the idea of collective federal ichl in protecting the environment. the practice is sound, has great validity and has been successful

in the past. since 2009 i have watched epa and osm go about executing an agendaing that doesn't concern itself with the rule of law for making changes to our nation's environmental statutes. i don't want to create the impression that they are negative. across many programs we have built very good working relationships with our counterparts at the regional level. most appeared to emanate from epa and osm headquarters which have little or no understanding of what it takes to run a state regulatory environmental program. >> thank you. >> members of the committee, good morning. i appreciate the opportunity to respond to your call this morning. in arkansas we are seek ing to drive regulatory policy that balance effective environmental results to ep sure affordable energy and economic growth goals. we want a state that can seek to attract professionals seeking out healthy living lifestyles and arkansas's world class

recreational opportunities. arkansas has invested in assuring we are stewards of the clean air, healthy breathing air, amazing vistas with which we have been blessed. we do not take our status as the natural state likely. we strive to fairly and consistently serve the corresponding and complementarile roles of environmental stewardship and economic development. likewise for decades we have successfully worked with epa under a governing model that's the topic of today's hearing. this notion is born of something

uniquely american -- our system of federalism whereby the nations and states function together as cosovereigns. both the epa and states had a balanced seat at the table. as we are known to do in the south, we would sit around the table and have a good old fashioned meal. there would be lively debate, ample servings and we would prepare a meal together. however this once treasured family style dines with our federal partners has become a thing of the past. now we have an increasingly diminished role el in the menu selection and meal preparation. we are often forced to eat what's served. the cooperative federalism model

that defined arkansas's relationship with epa beginning in the 1970s has morphed into something better described today as federalism. we have seen a decrease in time and tolerance for state implementation plans and a dramatic increase in epa take overs or federal implementation plans. historically these were used as weapons of last resort for our epa travel. its nuclear option for states that were unle faithful to the partnership or denied marriage outright. now often used as an everyday tool of dubious origin in the epa's master arsenal. in the past seven years states have been forced to digest more of the federal take overs than were ever served in the prior three federal administrations come bined, ten times over. states will not waste the time to draft their own proposals if they expect the federal government to do what it wants to in the end. the opportunity for local

innovation is destroyed. cooperation should be fostered, not discouraged. we call on you, our congress, to help remedy this broken marriage through amendments or ancillary amendments. heaven perched a seat at the table but finding out meals are served from the epa table. we are served a fixed menu without a fixed president of the united states. states' willingness to split the check and buy dessert was mitigated by a he will think respect and deference we have received. now we ask your assistance in resetting the needle to its point of origin. for air pollution, we seek air pollution prevention and control is the primary responsibility of the states and local governments. in our estimation, congress should ring the dinner bell, calling for the meal to be

served. states should host the occasion and epa should be a frequent and faithful guest at each state's table. however, where we are now, we can best describe as a progressive dinner party gone bad. states recognized an unprecedented level of federal action to borrow a saying in the south, we have more on our state than we can say grace over. the sheer number of mandates and deadlines further complicated by the complexity of the rules leaves us in a position for being served appetizer, soup, main course, salad and dessert all at the same time. if we do not clean we are banished from the table. to establish meaningful before moving oh to next one. we are left unable to taste one course before the next arrives.

the epa has the luxury of being the ultimate picky eater while they select what they prefer on the menu while the states are struggling to digest the meals and leftovers. the reality is that states are often now more pawn than partner is no more evidence ed in the epa's transportation from a two sentence legislation passage to the clean power plan which had final consequences and extraordinary costs. arkansas is seeking ways to work with how we can work with epa on consolidating efforts and superceding fips and sips without facing legal conflicts. in addition to the clean water act, state developed robust natural condition water criteria in arkansas have now become unrealistic and often unachievable minimum water protection standards. in this case epa executed an ultimate bait and switch.

serving up is 'tis tasteful. to ignore the chairs in our table that are stabilized by three legs and not just one makes for a difficultle meal. we want to see it at this table. we should not be but regulation of the day. in fact, a result from reinterpretation of the good neighbor provisions. in conclusion, not only has the uniquely american federalism model fallen but the state rule is now less partner and more pawn. we see soup and salad on the menu. we are left to wonder if special interest groups occupy our spots at the table that was reserved for us. with states disenfranchised so is the truth of federal democracy and the people we represent. thank you. >> thank you.

>> chairman, ranking member boxer, members of the committee. my name is steve permer, secretary of the south dakota natural resources. i appreciate the opportunity to share with you our per speculatives on why we don't believe the current framework between epa and the states upholdle the principle of cooperative federalism. let me provide examples to help fund the administration of federal regulatory programs. epa awards us a performance partnership grant. in 2012 the grant peaked in funding but declined during the last three years. this decrease is inverse through the huge increase in federal requirements for delegated programs in our view is an erosion of cooperative federal ichl. an increase of federal preejs. for example, epa and the corps of engineers had a rule intend ing to clarify which water bodies are subject to jurisdiction under the clean water act. the rule faced substantial opposition in south dakota. we joined a lawsuit to block the

rule. upon joining the challenge, south dakota attorneys general marty jackley was kboeted as saying the epa was over stepping congressional authority, seizing rights specifically reserved to the states. also under the clean water act epa proposed or finalized new national water quality standards for ammonia, nutrients, slen yum and dental offices. the bottom line is the new more stringent standards are going to cause additional wastewater treatment which is going to drive waste water treatment costs up perhaps to the point of being cost prohibitive. under the recovery act, epa finalized regulations to regular golden statele cole ash from the spill in tennessee. our single coal fired power plant disposes of only dry ash. it is subject to the rules which preempt dnrs existing solid waste permit. in a settlement agreement under

the clean air act the big stone power plant was a large source in needing to demonstrate compliance with the one-hour sulfur dioxide standard. epa never took into account the new air pollution installed at a cost of $384 million to meet the regional hazel rule. these new controls will reduce. another clean air dispute vols ozone. south dakota is one of only ten states in the nation that is with the national standards but against recommendations epa adopted a new lower standard for ozone. we are at risk of having a nonattainment status not because the air is dirtier but epa lowered the standards potentially below our background levels. in spops to another petition from the sierra club epa determined certain shut down and malfunction exemptions in 36 states to include south dakota are inadequate under the clean air act and need to be eliminated. our exemptions allows for emissions because certain pieces of equipment aren't fully functional when these events take place.

dnrs first rule was established in 1975. it was approved by epa. and is not caused or interfered with south dakota staying in compliance with the national standards. south dakota has joined florida's lawsuit against the rule along with 15 other states. the final rule that highlights the lack of cooperative federalism is the carbon dioxide standard for existing power plants. in 2012 which is the base that epa used, 74% of the power generated in south dakota came from renewable sources. in spite of this remarkable record epa threatens the economic viability of the fossil fuel fired power plants we have in the united states and could strand the regional haze controls mentioned.

here again our attorney general joined lawsuits against the rule most notably with west virginia. the bottom line is these requirements will have a huge impact on our citizens and on our economy. but will produce little or no noticeable benefits in south dakota. for this reason, we believe each state should have the right and the free dom to address these issues individually, using the principles of cooperative federalism on federal ichl. as stated in the executive order the framers recognize that the states possess unique authorities, qualities and abilities to meet the needs of the people and should function as laboratories of democracy. that's not the case. i hope the information is helpful to the committee. thank you again. >> thank you. all right. could you hold that up? according to this december 2015 timeline by the association of air pollution control agencies there are nine clean air act deadlines for states this year

alone. your testimony describes a number of these epa actions as -- i'm quoting now from your statement, "we have at best overlapping and at worst conflicting directives." can you explain how competing dms impact your department? >> thank you, chairman. it is frustrating as we seek implementation of a number of regulations in a short time frame. what we see as our program staff evaluates rules and seeks implementation, we are modeling different and often conflicting results for the same source or facility.

it often ignores the progress that the states are already making or continuing to make on different time frames. >> thank you very much. on february 23, 2016 i led some 200 house and senate members in filing an amicus brief with the d.c. circuit in opposition to epa's clean power plant. i observed mr. markowicz talking favorably about the plan. this is a win of four states exempt from it. the others would agree. the brief argues among other things that the clean power plant violate it is clean air act. i'm quoting now. epa takes a coercive approach that commandeers the states to implement and enforce the agency's power choices. i asked mr. huffman, do you agree the clean power plan coerces states to implement

policies, choices, not the choices of states. >> yes, senator. i think epa -- >> i'm sorry. thank you, senator. yes. i believe the change had to go over it. typically epa will regulate pollutants at the end of the stock, if you will or the end of the pipe. with regard to the clean power plant the only way to do it would be to put a regulatory number limit on carbon dioxide and the only way is a way to shut down all fossile fuel production in the country. the way they managed every minute detail of how the clean power plant. we think ran in conflict with section 111 d which give it is states authority to establish

performance standards and epa section 111-d, which gives the states authority to establish performance standards, and epa has done that, instead of setting the threshold and allowing states to figure out how to do it. >> well, thank you. there's a little bit of confusion, lack of clarity following the supreme court's stay of the clean power plan. has your state continued to work on the rule? and if the stay is lifted, do you expect compliance deadlines to be extended? in other words, are you continuing to work as if the stay were not reality? how are you preparing for it? i might ask others the same thing. go ahead. >> mr. chairman, our plan before this stay was issued was to proceed along a path such that we could do enough to get the two-year extension.

empts -- epa said that was not going to be a high bar to reach. so we read through what they were going to require and we started to work on those items. one of the items is a public participation process. in response to that we established a website where people could view information and give us comments. we scheduled some public input meetings. the day after the stay was issued, we canceled those public meetings. the word we are getting back from the legal team leading the lawsuit is they expect the deadlines will be adjusted by the courts once the decision is made. >> expecting that and knowing that are two different things. >> yes, sir. >> anyone else want to comment on that? senator boxer? >> thank you. >> mr. mirza kalily, ask you

describe in your testimony, delaware is a downwind state, such as rhode island, and i'm sure we'll hear more about that. much of the pollution in the state comes from up wind states. you see it is epa's role to ensure equity between where pollution is produced and where it is received. seems to me that's spot on. so if epa didn't set minimum standards and this went to your neighboring states sending smog and everything else over your way, and we left it all to each state, what would it be like for the people of delaware, in terms of asthma, in terms of copd, and the other problems that come from filthy air? >> thank you for the question, senator boxer. >> we can't have a feast without getting smoke in our eyes.

we suffer from the consequence of the emissions if they're unabated. as i mentioned in my testimony, some of those results are simple to remedy. equipment have been installed. just not operating because the current scheme -- >> thank you. you answered that well. mr. keogh, i'd love to be invited to your house for dinner, because you obviously are focused on that, and it would be fun. [ laughter ] so you just heard our witness from delaware talk about the fact that if we didn't have these basic minimum standards, they are wonderful people there, but they are located in a place where they get those winds and that pollution. so if your state, i know you get some pollution from the surrounding states but not to the extent some of the other states get it. wouldn't you think it would be

fair to limit that pollution? wouldn't you be concerned, the science tells us there's a direct link between dirty air and asthma and copd and worse. can you understand their point, is what i'm asking. >> sure. >> thank you. >> ranking member. i apologize. >> doesn't matter. i'm deeply unhappy if you call me -- >> i understand that. with due respect here. arkansas does have very clean and healthy air. it is difficult for a state like arkansas to, you know, reflect on the model assumptions that are made to implicate states which measure and monitor such clean air against other states -- >> that wasn't my question. my question was, if you were one of those states that got a huge amount of pollution from a next-door state, which did nothing to prevent it, would you put yourself in the shoes of delaware or rhode island or these other states? it's just a simple yes or no.

>> our states work together. when we have a situation like that. we have worked with neighboring states. >> okay. so your position is your state can tell another state what to do and you are criticizing the epa and now you're going to say one state is going to tell the other state what to do. it's not realistic at all. and that's the reason we pass federal legislation under nixon, i might say. miss markowitz, can you explain why it's essential to have national minimum standards while allowing states toor more stringent in protecting its citizens. [ inaudible ] could you put on your mike? >> so in talking about, we're also an upwind state. so we're also suffering. vermont is a clean green state. we have some of the worst air pollution in the country in rutland. that's because of the way the winds come from coal burning states into vermont.

and that's a problem for us. and we have tried to work cooperatively with the states to put in place those pollution controls that in many cases they have already. for vermont we want to do more. we recognize we have this culture of environmentalism, but at a baseline, when other states want to do less -- >> only to say, you're making my point. minimum federal standards let the states do more. i think that's what the beauty is of the clean air act which is under such fierce attack. now mr. huffman, the january 2014 spill from the freedom industries chemical storage facility, contaminated the drinking water supply of more than 300,000 residents of charleston, you know that. we are now facing another drinking water crisis in flint, michigan, where children were poisoned by the city's toxic drinking water. given these events do you think epa and the states should be

doing more, not less, to protect the public's drinking water? >> yes. i think your point about minimum federal standards and then let the states figure it out, that's absolutely the model that we should be following. >> good, good. >> that's absolutely what we should be doing. my point today and i think the frustration with west virginia is not -- for some it's about what the standards are. but the real problem for me is the way they go about implementing these standards. they are bypassing the guidelines under the federal environmental statutes for how to implement one of these changes -- >> since my time is out and the chairman is coughing he wants me to stop. [ laughter ] or it's the hot air. let me just say that i really respect what you just said. i don't think any agency -- federal government or a state agency should over step its

bounds. we'll talk more about that. i think what you said is very fair. minimum standards, yes. but implemented in the right way. thank you. >> thank you, senator boxer. senator round? >> thank you, mr. chairman. we pride ourselves in south dakota with clean air. if there's a forest fire in california or other areas, we suffer from the smoke from that. what we understand when you want clean air, we want it, too. we think we do a good job in the state. secretary, you have spent decades administering environmental regulations on the state and federal level. can you discuss in your experiences, the differences you've seen in terms of the quality and benefits of regulations that have resulted from a process and incorporates more state input compared to the regulations that have been recently promulgated by the epa? >> senator rounds?

based on my experience if you go back and epa rolled out an issue and if everybody came to the table and agreed this is a problem, and agreed this is some options that are viable, things get done. it works. if you don't have that process in place and the federal government epa in this case, is identifying the problem, along with the option, or a couple options, none of which work for you, then we're left with the lawsuits, the rash of lawsuits that i just mentioned in my testimony. >> talk about ozone a little bit. in south dakota we are in compliance. we are one of the few states in compliance. you've seen the new numbers. can you talk about what it does in terms of a state like south dakota where we are one of ten that actual complies with the

guidelines right now. you mentioned they want to make a change in this. down to perhaps below our basic numbers. can you talk a little bit about how frustrating that is. >> yes, senator. >> you know, ozone, to form ozen, you have to have certain emissions, and it has to react with sunlight. and then you get ozone. ozone might be in a downwind state. in south dakota we don't have -- we're a population of about 800,000 people. we don't have the sources of the chemicals that react with the sunlight to form the ozone. the ozone that we do have in south dakota is either from upwind states or is basically our background levels. i think based upon what we've seen, the new limit that epa has come out with is very, very

close, if not above our background lows. >> what's a state like south dakota supposed to do when we're not in compliance? >> we haven't been there yet. thank goodness. i would assume we would go into a non-attainment status. we have to try to work with epa on figuring out what to do, but since we don't have the sources, i don't know what we would do. >> in your experience how would you recommend epa change the -- its practice of making regulations to better incorporate state's perspective in the regulatory process? in other words, what are the implications of the epa enacting broad over-reaching national mandates, rather than regulations that take into account the different characteristics of individual states? >> your hearing today is on cooperative federalism. if you read the executive order

that i quoted in my testimony it says in there one of the principles of federalism is that those decisions that affect people that are made by the unit of government closest to the people are usually the best decisions. and we would say that's still true. >> i would suggest that during the year from 1979 on, you've gone through multiple administrations. can you share with us a little bit about what you're seeing right now, with regards to the -- either the consultations that are either not there or the directives that are being laid out right now, versus the way that it used to work, the way that -- whether it was in a democrat administration, or a republican administration, what's different about what's going on right now? >> senator, i think -- you know, senator boxer said we're not going to repeal the clean air

act. we are not going to repeal the safe drinking water act. we are not going to repeal environmental federal acts. i don't think anybody wants to repeal those federal acts. when those acts were put in place, there were real problems in this country. the environment was really, really suffering. that was the reason those acts were put in place. but in the intervening time period now, tremendous progress has been made. our water is cleaner. our drinking water is safer. our air is cleaner. and so i guess what bothers me some about this, is now we're trying to ratchet down to the next environmental problem and we are getting to such low levels, that we're going to spend a lot of time and money and resources and in the end, what's going to be the benefit?

>> thank you, mr. chairman. >> thank you, senator rounds. i mentioned in my opening statement all the acts, the clean water, clean air, we in the republican side were very supportive of that. i was one of the initial cosponsors. i wouldn't want people to think these things aren't working. they are. we understand that. senator carper? >> thanks so much and thanks to you. just to follow up on what alex said. during the time ali was serving the department of natural resources, cristop was chairman and i was governor for eight years and chairman of the national governors association for a while. i get the idea that the states are laboratories of democracies. i like the idea that they would set standards and you figure out how to do it. figure out the most cost effective way. i think the six points you outlined in your testimony and

numerous trips over -- and ask everybody on the panel if you agree with those. before i do that, just to think about telegraphing the pitch. thinking what he said and how you feel about that. the chairman and i go to a bible study that meets most thursdays. i have been to a prayer breakfast this morning. we do try to figure it out and abide by it. [ indiscernible ] -- literally shut it down. that's just not fair. that is not right. that's why we need others to be a good neighbor and to look out for their neighbor. some places in the midwest where they created cheap energy,

burned coal. 500 foot tall -- what do they call them -- smokestacks. put the stuff up in the air. it blows over to the east coast. we end up with dirty air. we have to spend more money to clean our air because other people are getting cheap electricity. it's not right. we have to keep it in mind. the golden rule. treat other people the way you want to be treated. the other thing to keep in mind, something you said, we made great progress. i was at ohio state university. there's a river in cleveland that caught on fire. cuyahoga river. the river goes right by the train station. we can't eat the fish there. in fact, we can't eat the fish in most of the rivers in my state. a lot of rivers in a lot of other states where they can't eat the fish either. the river doesn't catch on fire anymore but we still can't eat

the fish. we have to be guided by sound science. part of sound science says part of the real problems for air pollution is the size of the particulates that get into our lungs are the most dangerous are the smallest. the really dangerous stuff is the tiny micro dots. i'm asking you to keep that in mind. i want to go back to ali. he made six points. i want everybody to say whether or not they think he's on target. he said i believe epa can best fulfill the role by fulfilling sound science, epa must set national standards as congress mandating which rely on sound science. that's number one. flexibility. once epa establishes standards, appropriate flexibility to meet obligations rnd the clean air act and protect public health and the environment.

number three, timely rules and guidance. important that epa issue timely implementation rules and guidance for use by the states. number four, accountability. epa should be consistent in the outcomes it expects from states. and hold each state accountable for meeting their commitments. number five, equity. epa must provide for a level playing field among the states. the golden rule i was laying out. finally nationalized sources. epa must address sources at states preempted from regulating or lack of regulatory expertise that are most effectively regulated on a national level. do you agree with those? has he laid it out pretty well or not? >> yes, i agree with that. it makes tremendous sense. i think that's how we've been operating. we in vermont have experienced tremendous flexibility. >> those are great principles.

and we agree with them, we long for the days when the execution follows that ideal. >> thank you. miss keogh? think of this as a menu. >> no biscuits and gravy. i agree. these are good principles. it comes down to the implementation and how we can work cooperatively and find solutions rather than create new challenges. >> thank you. mr. pirner 124? >> i would agree with those six points as well. as the other witnesses have said it's basically how you carry it out. >> i would say the ayes have it. >> thank you. >> thank you, mr. chairman. i want to thank all of you and i neglected to mention when i talked about secretary huffman, that he's also a colonel and serves as the vice wing

commander for the 135th. so thank you for your service there, certainly huffman. i thought it was interesting. i'm glad the senator went to the principles you laid out. i was going to use it in terms of my questioning. secretary huffman, you have highlighted section 303 of the clean water act of the testimony. basically it says the epa established the state's water quality standard meets the requirements of the clean water act. if the epa determined that a water quality standard isn't consistent by law the epa has to notify within 90 days. my understanding is the west virginia legislature approved a change in the state's water quality just last year. but the epa failed to approve or deny the change within 90 days. i think the substance we are talking about today isn't so much the standards you mentioned but the implementation, the lawfulness with which the federal agency is moving forward. in my view with them not notifying in the timely fashion or giving you good direction it

violates timely rules and guidance that the secretary from delaware or the director of delaware was talking about. and the accountability. how vital is the feedback for epa that it come in a timely fashion so you can fully implement? >> thank you, senator. good to see you again. it's critical, because this is -- there are a lot of moving parts in this environmental regulatory business. there is a lot going on. we need to make requests and get answers and move on. what's frustrating is i can smit a change for water quality standard and not get it and wrangle for months and sometimes years, and yet, when i get an opportunity to comment on proposed rules, i might have three days, i might have four days. and that's very frustrating. it makes me wonder if i were a

conspiracy theorist, i might wonder what their agenda is, what's going on here. it's frustrating. >> let me ask you the difference between rules and regulations. you brought it up in your testimony. you see it throughout the administration in terms of offering guidance instead of rule making because it evades the legal aspect of creating the regulation. are you getting more guidance than in the past? is it more difficult? are there enforcement mechanisms? >> well, guidance, when you govern by guidance instead of going through the protocols that the congress has set up in our environmental statute allows you to get by with more. it allows you to avoid transparency in how you get to your point. we are seeing a lot of that. not only with epa, but as i mentioned with office of -- [ inaudible ] >> i think most of you mentioned that what you need is the federal minimum standard, nobody

has a problem with that. it's the implementation aspect of it. most of you have mentioned the flexibility the states need to have. obviously in west virginia, we have a much different situation than you have in vermont. we are blessed with a lot of coal and we use it and have used it. we are cleaning it up every day. it's a bigger challenge for us. we need the flexibility in west virginia to meet the standards. as every member would say clean air and water is just as valuable to us, and i think we can eat a lot of the fish we catch in west virginia, so we're very happy about that. is the flexibility aspect probably the most difficult hurdle for you all to over come? i will start with you. secretary huffman? >> i don't know if it's the

flexibility or the frustration. i know we're running out of time here. the frustration seems to be the way -- that it's an inconvenience to involve the public, to involve the states. it takes time. if you want to make a rule it takes time. the convenient way would be by fiat to impose it upon the states. that's what we're seeing. there's little to no flexibility. because it's already written. by the time we get it, it's written and the minds are made up. it's difficult to overcome that. >> you agreed to participate with osm to develop a new stream buffer rule. many states were involved with this. because of the numerous frustrations and really the lack of listening that osm is doing most of the states pulled out of that i, -- pulled out of that, i think, is that correct? >> that's correct. there was a draft of it before

us signing on. >> it was already written? thank you. >> thank you very much, mr. chairman. let me associate myself with the remarks of governor. and now senator carper as the attorney general of my state, rhode island, i saw exactly the circumstance that he very well described. not only did the upwind states not make any effort to treat us fairly, we often had to try to sue the upwind states, with epa, or sometimes even sue epa to enforce compliance with the clean air act. on a perfect rhode island summer morning, you could drive to work and hear on the radio that today was a bad air day and that children and the elderly and people with breathing difficulties should stay indoors. stay indoors.

like delaware we could have shut down every outlet of emissions in the state of rhode island and not gotten ourselves into compliance because it came from other states. other states that fought compliance. other states that often had not even put scrubbers on their smokestacks yet. other states that specifically built high smokestacks so it would project the emissions out of their state. they were very often states in compliance with the air regulations even though they were the source of emissions that were taking rhode island out of compliance. so i know there are going to be states that will be unhappy with epa regulation. they would move to have the regulation be as close to the people as possible because those people wangled it to export pollution to my state and not have to pay for it and not have to clean it up.

that's a real problem i think epa has to address. it's very important to our downwind states. it's just not fair for kids in rhode island not to play on a summer day because they're having a bad air day. as epa has cracked down more and more because states have sued, sometimes because they've acted on their own, actually our bad air days are diminishing, but it took epa to get after the states that were happy to go along with the gag. they made their pollution somebody else's problem. that somebody else was my rhode island children, elderly and people with breathing difficulty. for the record, our engagement with region one of epa is terrific in rhode island. we don't have complaints. we talked back and forth. very open. no problem. i don't know if there is significance to the fact that the states that seem to be more

in the export business are the ones that have more of a problem with epa and the ones that are hor -- more in the "we're getting clobbered" business, appreciate epa. but certainly from rhode island's perspective we appreciate very much what epa is doing. let me ask a quick question to see where folks stand. do carbon emissions from fossil fuel burning cause changes in our atmosphere and oceans that portend harm to people and eco-systems? >> senator, i'm not going to enter into that particular debate. what i would argue is that if we're going to control carbon emissions, it has to be done in a way that can work and that's feasible. and the first proposal epa laid out in our state simply was not

feasible at all. >> why are you unwilling to answer a question at a hearing that is as simple as do fossil fuel emissions port end harm to human beings? why aren't you willing to enter into a debate? >> i'm not an expert in that particular topic. >> do fossil fuel emissions from burning cause problems in the oceans that portend harm to humans and eco-systems? >> i think you can find scientists that say both, yes and no. >> what do you say? >> well, i am not an expert either as the other witness indicated. >> mr. huffman, do carbon emissions from fossil fuel burning cause changes in our atmosphere and ocean -- >> i believe -- i believe -- i didn't mean to interrupt you, i'm sorry, senator. i do believe the science would indicate that our climate is changing. i think there is a lot of unfortunately, we're having the debate in the wrong place in

this country over climate change. we're name-calling. it is reduced to name calling over whether you believe or don't believe in climate change. sure, the climate is changing. what we need to debate is what we should be doing about it. i don't know that we have come together as a nation on that. >> clear enough for me, let me just say for the record, that i think every national lab, noah and nasa, and every one of our lead home state universities would have found that an easy question to answer with a plain and simple "yes." thanks. >> senator boseman. >> thank you, mr. chairman. in your testimony you cited dramatic increase in time -- i'm sorry, dramatic decrease in time and tolerance for state implementation plans and

dramatic increase in federal implementation plans under the administration. as depicted in this chart, the obama epa has taken over state programs 54 times, more than the three previous administrations combined times ten. director keogh, are you concerned about this trend? isn't it true state trends are integral to the federalism structure and federal plans were intended only as a last resort? >> thank you, senator. we are concerned about this trend. we understand that federal plans may be necessary sometimes in circumstances where states do not act or choose not to act. but the frequency and process of the fips have become so alarming mainly because they take a federal solution that may be

developed in a very short period of time with limited information and replace a very thoughtful and extensive process at a state level. where we have dealt with what could be a reasonable solution. we vet it through transparent processes and also search out whether we have unintended consequences. that's our big concern. that we replace our well thought out judgment with somebody else's solution that may not have seen that same thoughtful process. >> very good. as you know, under the regional haze program, states develop implementation programs. epa has limited ability to reject the state plan and issue a federal plan instead. in arkansas, epa rejected our state plan and proposed an expensive federal takeover. director, is it true the state plan was on track to achieve natural visibility conditions? >> yes, sir.

>> and this proposed federal regional haze plan for arkansas, did epa go beyond its limited procedural role prescribed by the clean air act? >> in arkansas, we do believe so. and, in fact, when i asked epa when they offered up the federal proposal why they expanded the scope of the regional haze plan to include sources that were not legally authorized under the rule, epa answered "because we can." >> how will the requirements of the federal regional haze plan interact with possible actions under the clean power plan? are those time lines intertwined in a complicated way? >> they are for arkansas at least. our state air experts that evaluated both rules and have been working diligently to assess impacts and solutions looked at models. it's important show that the model under the regional haze

plan, where they take into account cost effectiveness, assumes a source could install multi million dollar control equipment and do it cost effectively. however when you look at the models and the time lines of the clean power plan, that same source no longer operates just a few years later after those controls are installed. that would be an extremely costly mistake for arkansas to pay for to install multi million dollar controls, to have the source shut down to comply with the consequent rule compliance state. >> thank you. we talked about the unfunded mandates. i think we can all agree that's a problem. randy, can you address that a bit?

>> it's always been an issue. the funding for the vast majority, i don't know the number of our environmental regulatory programs in the states is provided by the states, either through the general fund budgets, or in our case, there's a lot of special revenue type account through assessments and fees on the industry that we regulate. i don't know that i've seen an analysis by epa when a new rule is imposed or a new guidance. there's never an analysis done on what the -- that i've seen that would indicate what the costs are that are associated with it. >> thank you. >> thank you. mr. marquee?

>> ali, you're like a first name, like bono or madonna, or ali. thank you for being here. some of your fellow regulators have expressed concern about not being able to comment on epa rules, the clean power plan changed significantly from its draft to final form based on input from the states, industry, and other stakeholders. do you find the epa is listening to you in terms of the flexibility, the concerns which you've been expressing? >> i absolutely do. especially in terms of clean power plan. i think outreach, level of outreach, dialogue, stakeholder involvement was unprecedented in that effort. we see marked difference between what was proposed and what was finalized and we see our comments reflected in those changes. >> earlier in the hearing, there was a discussion of the number

of deadlines approaching for the clean air act. the massachusetts department of environmental protection has corresponded and noted that -- with chairman inhofe for this hearing and he noted that massachusetts will meet these deadlines. will delaware meet the deadlines as well? >> we absolutely will be. >> will vermont be able to meet the deadlines? >> we absolutely will be. i want to acknowledge under the clean power plan we don't have regulated entities so we don't have an obligation there. in answer to your earlier question, though, there was an unprecedented involvement, even of vermont, in the development of those rules, because we're deeply concerned that whoever the implementation is, that it could include the regional greenhouse gas initiative that we're part of. >> so let me follow up with you

secretary markowitz. -- if they meet national standards set by the epa. given the ongoing situation in flint, michigan, it's clear we still have a long way to go to ensure safe drinking water for every american. what are the ways that we can enhance federal/state cooperation to ensure safe drinking water for all in our country? >> this is an area where we have direct experience right now. we have an issue with a chemical pfoa, which was not a regulated chemical, which is nevertheless a carcinogen and an endo krin disruptor, that has been found in wells in bennington. it's used in the making of teflon and we really rely on epa and their scientific expertise to help us manage that. in addition, they have come out with some new rules and standards for the limits in

copper and some other -- some other things that we can find in our drinking water. this is an area of partnership that's really important. the standards that they set help us ensure that our vermonters are healthy when they're taking water from their taps. >> ali, let me come back to you. i think as we're all aware climate change is a global problem. but it requires local solutions in order to solve the problem. and you know pope francis who taught high school chemistry came to congress to preach his sermon on the hill to us to tell us that the planet was warming and the science proved that and that human beings were contributing to it and the science proved that and that we had a moral responsibility to be the leaders for the planet. so my question is, since both delaware and vermont are part of

the regional greenhouse gas initiative which has been partnering now for six or eight, ten years, to reduce greenhouse gases, can you talk about how the epa has been coordinating with you to ensure that this problem, this global warming problem, can be solved by cooperation amongst the states and working with the states? >> thank you for the question, senator. they have been. one of the key comments we made at the proposal was for epa's final rule to accommodate and use the framework that we already said on the regi. it's been accommodated. we think our regi solution is a very good solution that can be expandable nationwide. and the rule accommodates that as well. >> thank you. and appreciate kind of the

interstate aspect of this as well, much less the international aspect. no question about it. but there has to be cooperation. silvio conti, a congressman from western massachusetts and i, we introduced the first acid rain bill in 1981. it took until 1990. that was because people were putting smokestacks football field high in the air and blowing smoke towards us so we were the ones principally affected, vermont and all the new england states. and so it's clear that unless we work together we can't solve problems of that magnitude so we thank you for your work in trying to establish that. thank you, mr. chairman. >> thank you, senator fisher? >> thank you, mr. chairman, and thank you senator boxer for holding this hearing today and thanks to the witnesses for coming. the nebraska department of environmental quality shares in the concerns that have been expressed by many of the witnesses today. in the letter addressed to the committee, our state has written that "while nebraska has a good working relationship with epa

region seven, recent epa headquarters regulatory actions have snowballed. epa's compulsive tinkering with standards and limits often before states have had a reasonable chance to comply make it difficult to reconcile those often-competing priorities." unquote. secretary pirner, in your response letter that was sent to the committee, you state that nearly all new federal requirements will have an impact on your state, its citizens and its economy but will, quote, produce little or no benefits in protecting public health and the environment. like my home state of nebraska, south dakota is a rural state that hosts many unique and critical natural resources that benefit citizens and communities. can you elaborate on the challenges many rural communities will face as a result of expansive epa

regulations, and what are the economic impacts, in terms of job growth and industry investment from the epa rules? >> senator, i think -- you know, part of my concern is that on the water quality and effluent standards that i talked about in my testimony, it's not that we're against having minimum standards, but now we're ratcheting those standards down to such a degree as to be almost infeasible in some cases. you know, i'll just talk about the ammonia standards, we were one of the first states to include ammonia as a water quality standards. ammonia can be toxic to fish. we agreed with that, we agreed that all of our large cities have tertiary treatment that treat for ammonia and have for many years now.

but if we ratchet that level down, now we're going to have to install even more treatments and can we -- basically the new standard is based not on fish anymore, it's based on mussels. and so i'm going how did the mussels do it when we didn't treat for any ammonia? i'm not a biologist and i don't understand all that, but all i do understand is that the levels are getting down to such a point as to be cost prohibitive. and that concerns me because if we do try to comply with those new standards, we're going to be standarding a lot of time and a lot of money that could be spent in other areas. >> nebraska, the department of environmental quality, they discussed the need for streamlining those federal requirements. we're always worried about that unnecessary duplication.

so, mr. pirner, do you agree with that statement? in your experience, do you see duplication reoccurring -- as a reoccurring theme among state regulators as they try to interpret and then try to implement all these federal mandat mandates? >> senator, i'm not exactly sure i understand the question. you mean duplication between the state and epa? >> in many cases yes but also between federal agencies? so it's not just epa that comes down with standards but you have other agencies as well. >> well, we certainly have other federal issues with the corps of engineers, with bureau of land management. with forest service. so i mean there's many other federal agencies that we believe are infringing on state's rights besides epa, if that's the answer. >> how much time does that add when you're trying to meet

regulations? when you have different agencies out there that are -- i would say they're piling on on a number of the regulations that we look at. >> senator, it's certainly of concern. i'll give you an example. in our department, we're a relatively small department. our clean air program i think has 14 fte in it for the whole state. when the clean power plan came out we took two of those people and they have been working -- they worked when it first came out and we were trying to do comments and figure out what was going on and when the final rule came out, we had to go through that process all over again. basically we processed somewhere around 80 air quality permits per month that are renewals and no and so on. i had to take two out of the 14 fte out of that process to devote to just the clean air plan. >> in your testimony you talk

about the epa's rule to regulate coal ash, and you note that the new rule will pre-empt the existing solid waste permit that's currently administered in your state. it's my understanding the epa is encouraging states to amend their state solid waste management plans. are you concerned about the timing for that? >> yes, senator, very much so. again, we believe our existing solid waste permit was adequately protecting the environment. now there's a host of new requirements that somehow we have to merge in with that existing permit and try to figure out how to do that in the least disruptive manner to both the agency and industry. >> are you limited in your flexibility? >> all i can say at this point is our negotiations with a region 8 are on going. >> thank you, mr. chairman. >> thank you, senator fischer. senator gillibrand? >> thank you, mr. chairman.

ms. markowitz, new york and vermont share lake champlain and both are part of the lake champlain basin program. working with epa to improve the water quality of lake sham plain is very important to both our states. it's my understanding that the epa and state of vermont have been working together to establish a new total max many -- minimum load for lake champlain. could you elaborate with how the epa has worked with your agency for this agreement? >> thank you, this is a perfect example of an issue that could have been seen as an overreach but instead really has ended up with a path forward that offers us flexibility and an innovative approach to cleaning up our waters. lake champlain suffers from terrible algae blooms from phosphorous pollution. unlike in the '70s and '80s, it's not because of what's coming out of the waste water treatment facilities as much as

it's coming off the landscape. so rather than being point source, it's nonpoint source pollution. precipitation driven pollution. so as we were working on a new tmdl for lake champlain, is we've been working on it for four years, they could have just done it on their own but they engaged us, because they understood if we were going to clean up the lake, we really had to be involved, because we understood what it would take to engage municipalities and farmers and business owners and developers and our transportation department, in managing storm water driven pollution. it's been tremendously successful. we're waiting for the final tmdl to come out. we already have a plan to implement that's been passed by our legislature including some funding and i'm happy to share it in more detail to any of you because i think it's the gold

standard for this cooperative federalist approach. >> thank you. in your written testimony, you wrote "pollution does not honor state lines," which is why you see the value of having national standards. and mr. mirzakhalili, you described that our most important responsibility under the clean air act is to protect the health and welfare of citizens throughout the country from the harmful effects of air pollution. could you discuss examples of how pollution in one state affects the health of citizens in another and from your perspectives as state environmental regulators is the health in the citizens of vearmt, delaware, new york, or anywhere, better protected by having national standards that limit the amount of pollution that can be emitted into the air that we breathe? do you agree the epa has not overstepped its authority using the clean air act, the clean water act and other federal environmental laws that are

based on what science shows to be necessary to protect public health and the environment? >> certainly. thank you for the question, senator. delaware, vermont, northeast is the perfect example of states that are suffering from air pollution transport. epa has come up with a transport rule recently to allocate responsibility and establish how much each state contributes to the other. we happen to think they haven't gone far enough. we think they need to -- the epa needs to do more. some of the transport good neighbor steps were due to us about five years ago. so i think the deadlines you see here are the result of things not getting done when they were supposed to get done, so absolutely i think epa should do more in this area and i think we

stand to benefit from that. we can't meet air quality standards. right now in practice we are -- over 90% of our air quality resources have been allocated to upwind states. i can't come into compliance without help. >> do you want to add to that? >> well, that's our experience as well. we are barely in compliance in a number of parts of vermont and, of course, we have no contributing industries. so, again, it's all upwind states. we have tried to negotiate. we've tried to sue. epa's had rules on the books and we're very pleased that they've come out with compliance deadlines because that will make a difference to the health of the people of the state of vermont. >> thank you. >> thank you. >> thank you, senator gillibrand. senator sullivan? >> thank you, mr. chairman, i want to thank the panelists for

their testimony on a very important topic. i think it's very clear on this committee we're all very committed to clean water, clean air, there's been a lot of focus on the flint issue. certainly nobody wants to have our drinking water have poison in it, so the issue of clean water certainly has come up because of that. i am really interested in having to work with my committee members in my state. we have entire communities in alaska that don't have running water, that don't have flush toilets. thousands of alaskans, americans which i think is outrageous and i certainly want to work with this committee on not only addressing flint but other places that don't have any of the benefits that most americans just assume they have. we don't have that in my state in a lot of communities and it's

something we need to fix, not just in other places in the country. but mrs. keogh, i want to follow up on your -- i think your statement sums up frustrations that so many of us have where you just stated where the epa stated "because we can." can you elaborate on that more? i find that remarkably arrogant. i find that an agency certainly dismisses the rule of law. i think there are example after example after example, and it's not just members from this committee. i'm always surprised why this committee on a bipartisan basis isn't more focused on making sure federal agencies follow the law. right now the epa in the last two supreme court terms lost the

epa versus air regulators case. lost the epa versus michigan case. has a stay on the wot us case where over 30 states have sued. and in an unprecedented action, the u.s. supreme court put a stay on the clean power plan. so the epa is losing every single major rule that they are undertaking in the courts with obama administration officials, other officials who are federal judges saying the epa is overstepping its legal bounds and you may have seen what gina mccarthy said on tv on the eve of the "epa v. michigan" case when asked if she thought they were going to win the case, she said yes. they didn't. but then she said "even if woe -- we don't win the case, it was three years ago, most of the states, companies, are already

in compliance. investments have been made. we'll catch up. so it's like hey, even if we lose, we win, because everybody had to abide by the law. i think that's outrageous and it's the source of frustration that so many americans feel and can you just elaborate on this "because we can" quote. i just find it the height of arrogance. just for everybody's information, the epa is supposed to abide by the law, and the federal courts are showing in the last three years, they don't. "because we can" is not an appropriate answer. on people who work for you. >> senator, thank you. it is disheartening. we as state regulators found ourselves in that position everyday as we affect regulation to make sure that we follow the law that's set forth. >> of course. >> we do not create the law.

we -- that's what we're supposed to do. >> we don't create law, we uphold the law. it's frustrating as we sit. admittedly i had short notice this federal plan was coming at the time so i felt like it was a genuinely honest question to understand so i could communicate effectively why requirements were being added to the state plan and it was very disheartening at a minimum and very frustrating or perhaps violation of trust to answer it with "we can." >> so they didn't attempt to cite a law or a regular? they just said "because we can"? >> the discussion went from a statement where arkansas made that we are on a glide path with the regional haze rule to advance and comply early and that we were doing everything under our state plan that was required under the law. they went in and then beyond that statement discussed a provision about rate of progress and how they could require additional requirements under this phrase of rate of progress

and we questioned that when we have a rate of progress that already exceeds -- shortens the timeline and we achieved compliance early so it became of a bit of a circular conversation to be honest with you. it was around there's a phrase in the law that says we can go beyond bart sources to seek a better rate of progress, and that was where they left it. and we did not end with a positive outcome and obviously we continue to discuss that with epa today. >> mr. chairman, do i have time for one more question? i see there's no other members. >> you don't have time. but go ahead. >> i want to follow up on the issue of consolidation -- consultation. one of my frustrations, i had been the attorney general in the state of alaska and the commissioner of national -- natural resources, but we often found that the consultation either didn't exist or was very cursory.

and yet, in every statute that we're talking about, the clean air act, the clean water act, every epa focused statute, the consultation requirement is not optional. it's mandatory. so i would just like any of the witnesses here to -- if you have a sense on do you see the consultation more as a box check when you indeed get it or do they try to listen and implement your concerns? because one of the things we've seen, there's a one size fits all rule from washington rarely works, whether it's alaska or vermont or arkansas or south dakota. so i'm wondering about your experience with mandatory consultation, that's what it is in all the laws. it's mandatory. do you feel that you're getting that enough? maybe i'll start with mr. pirner. >> senator, i think it's more of they check the box in my opinion.

a lot of these proposals that come out there's a public comment period. we comment along with everybody else, but in this example of the clean power plan, they received 1.6 million comments or something. so if you're talking a state to federal agency consultation process, i wouldn't consider submitting one set of comments, which we submitted under the governor's signature, though, as being a state to federal agency consultation. >> anyone else on the consultation issue? >> if i may, i co-chair a committee at the national association of clean air agencies and i can tell you epa is present on every call. they attend it, and that's not just with my committee, with other committees, where an organization has the presence of

epa staff, they bring their thinking to us. they share early drafts, they explain. so that may be a good place to plug in a conversation with epa. could they do better? in some instances yes. we hear there's friction and tension between guidance and flexibility, you want the rules, i understand, you want to go to rule makings. rulings are rigid, so be careful what we ask for and make sure they can produce what it is that we want. so the rules set minimum standards, and the rest of it is our responsibility to collaborate and cooperate and get done. thank you. >> i would add to that, i'm on the executive committee of the environmental council of states and epa is at every meeting and

comes on to monthly calls if we ask them to. so as described by ali, they've made themselves remarkably available to us. in our region, as we're developing our performance partnership agreement, they also in region one at least, are offering tremendous flexibility in terms of how we're going to be managing our obligation under our delegated programs. of course they could do better. one of the places there's a difference between listening and agreeing. so i think they do a great job listening, they don't always agree, and that's really, i think, in part, some of the frustrations that you sometimes hear from my colleagues. they tend in this administration -- we tend to agree with them more so we're not dissatisfied with the level of attention we're getting from them in this dialogue. >> mr. huffman, do you have any

thoughts on that? >> senator sullivan, we'll have to chop it off here. you're five minutes over. >> okay, mr. chairman. there's no one else here, so i was just wondering -- i mean -- >> okay, senator boxer wants to have the extra time. >> usually if there's no one here it doesn't seem to be a big ask to continue to ask questions. but i'll submit questions for the record. >> all right, that's fine. senator boxer, take whatever time -- >> that's very sweet of you. >> thank you. >> now i just want to talk about the courts because my colleague senator sullivan raised the issue. we looked it up. epa has won 70% of the cases before the supreme court and as a matter of fact in the 30% they lost, sometimes they lost because they were not doing enough and we can send you the memo on that because i think

that's important. i also think it's important to reiterate a fact clearly that should be in evidence. this is one nation, under god, indivisible, with liberty and justice for all. we know that. so to think that the federal government would not be an important partner to the states is wrong. now i know some of you say it's fine for them to be a partner, but i want to pick up on what mr. pirner said. because it's very clear, this be has been a great panel, by the way, all of you have been so articulate and it's been very interesting here. but mr. pirner you said in the '70s we had terrible air pollution and it's understandable, it made sense to cut the pollution and now you said things are so much better epa is going too far. that's essentially what you said. and i have to give you some facts that i'm going to put in the record with the chairman's agreement.

and this is important. 11 million americans have copd, chronic obstructive pulmonary disease. 11 million. 22.6 million americans have asthma including 6.1 million children and there are 1.68 million estimated new cases of cancer in 2016. so to sit there and say that there's not work to do, it seems to me strange and you're in such an important position to help those people. now, maybe they -- you know, some of them live in your state, some of them live in a neighboring state, and to say that you have a great relationship with a state and they'll be fine, it's just not a fact in evidence. ms. keogh, you're here, you're giving testimony to this committee and it's got to be truthful and i know you were. so over the next week, please

send me the name of the person who told you, the name of the person who said "we are ordering you to do this because we can." i want the name of that person because whoever said that was absolutely wrong and i don't want just people to just throw it out. who did it? if you can put that in writing confidentially, i would greatly appreciate it. because i want to find out why they would say such a thing. i just think overall, this panel has really proved a point. there's another one on coal ash, which you complained about, mr. pirner, right now, there are 331 hazardous coal ash ponds, that could, if not improved, lead to a loss of life. so maybe you can sit there and say what you say, but when i swear to protect the people, i'm going to do it. and this is the environment committee.

this isn't the pollution committee. and senator and i have a different view of the role of the federal government. i think it's all very fair. but at the end of the day, this is one nation, so setting minimum standards, making sure our people are protected, whether they're in my state, or a state adjacent where the pollution from my state may actually go to another state, i have an obligation, even if it's in my state. and by the way, we have 40 million people and a lot of pollution, a lot of industry. we try our best. we do have forest fires, we have natural disasters. so we have an obligation, and my state doesn't complain about it. they just clean up their act. and it's just a function of what is right. what is morale right. and you can measure the progress as you look at the health of the people. this is not some conversation about the meaning of the 12th amendment, the 10th amendment, the first amendment.

it's about the health of our people. we should do everything we can to protect their health, and as long as i'm vertical, that's what i'm going to be working on. thank you. >> well, thank you, senator boxer, anything else? >> no. >> okay, all right. let me just make a final comment here that it seems like every time we have a hearing it ends up to be a global warming hearing or at least that's injected into it. let me just share my personal thought that climate is always changing. i've said this on the senate floor. i can't remember, i wasn't alive in 1895 but in 1895 we went through a period where they first started using the -- another ice age. in 1918, they started using -- it was the first time they started using global warming. and then that changed again in 1445 when that was another ice

age they were talking about. and then that changed in '75. so about every 30 years this happens it's always been changing. the interesting thing is in 1945 that was the year they had the highest co2 emissions in the history of this country. recorded history. and that precipitated not a warming period but a cooling period that sustained for another 30 years. so i think that has to be said. i know the public understands that now. i can remember back when i was the bad guy and we were talking about this back in 2000 and at that time it was considered to be the number one concern, now it's number 15 out of 15 according to a poll. so people have caught on and they'll continue to bring that up. last thing is we all want a clean environment and when you mention the clean air act and all these other acts, we were all for them and i was back then.

in fact, i was the initial sponsor of the clean air act. so with that we'll adjourn. i'd like to have one quick short word with mr. huffman and miss markowitz if i could. thank you. >> all right, barbara. >> that was good. >> i think so.