planning authorities are currently engaged in settlement discussions with the environmental litigants. The EPA has been supportive of these discussions and has been and remains available for consultation. Clean Air Act Question 14. In the rural West, Federal land management agencies take actions that have significant consequences in our air quality. Prescribed burns in forest areas are undertaken by the U.S. Forest Service to ensure the health and viability of forests. Nonetheless, communities that are adjacent to or surrounded by National Forests are subject to the migration of air emissions from these and other forest management practices. Will the EPA count smoke from these burns against the state or region's air quality allowances? Response. On May 15, 1998 EPA issued an interim policy for addressing public health and welfare impacts caused by wildland and prescribed fires. The policy, known as the Interim Air Quality Policy on Wildland and Prescribed Fires, encourages State and tribal air quality managers to collaborate with wildland owners and managers to mitigate the air quality impacts of prescribed fires and to develop and implement smoke management programs (SMP's) to prevent deterioration of air quality and the violation of health standards, mitigate the nuisance and public safety hazards (e.g., on roadways and at airports) posed by smoke intrusions, and address visibility impacts in parks and wilderness areas. If States and tribes actively implement SMPs, EPA will exercise its discretion under the Clean Air Act not to redesignate areas as nonattainment because of smoke from prescribed fires. Question 15. If no, how will the EPA work with state and regional authorities to help quantify the impact of such practices on local air quality? If yes, what authority will state and regional officials be given to undertake actions on public lands to mitigate air emissions for which they will be accountable? Response. The State of Idaho has a Smoke Management Program (SMP) in place. Therefore, smoke from Federal burns will generally be exempt and EPA will not redesignate Idaho areas as nonattainment because of smoke from prescribed burns. However, if smoke from prescribed burns begins to cause PM air quality violations, EPA will call on the State to review the effectiveness of the SMP and make appropriate improvements to mitigate future air quality impacts. If the problem continues, EPA will call for the SMP to be made part of the State's air quality implementation plan (SIP) and be federally enforceable. RESPONSES BY MICHAEL MCCABE TO ADDITIONAL QUESTIONS FROM SENATOR LAUTENBERG Question 1. As you know, I have introduced legislation to improve the quality of the waters we swim in at our nation's beaches. I understand that EPA has a program underway to help states adopt water quality standards for coastal waters. From your perspective having come from a region with several coastal states (Delaware, Maryland, Virginia), what improvements need to be made in how we protect health at our beaches? Response. EPA believes that improvements to beach monitoring and public notification programs to make them more consistent nationally are needed to provide better public health protection. As one way to enhance public notification, in consultation with States, EPA has established a public right-to-know data base about beach water quality. Moreover, EPA believes that consistent, scientifically defensible water quality standards for states and tribes are very important. Some of these water quality standards are intended for recreational use. These recreational water quality standards provide the scientific and programmatic framework for enhancing protection of public health at beaches. To address another area of needed improvement, EPA is working with states and tribes to ensure that they adopt state standards which incorporate the Agency's published criteria for Escherichia cold and enterococci; research data support the use of these microbes as indicators of swimming-associated gastrointestinal disease. The water quality standards program framework established by the Clean Water Act and continued by the Lautenberg bill is flexible, allowing for state variation consistent with protection of public health and good scientific practice, and revisions by EPA and States as new bacteriological indicators, monitoring protocols, and models are developed. OEI Question 2. Part of your portfolio as Deputy Administrator would be oversight of EPA's new information office. Senator Crapo and I intend to introduce a bill shortly that we believe is very much in keeping with the spirit of that office, and we would appreciate having EPA's support for it. The Streamlined Environmental Protection and Pollution Prevention Act of 2000 would require EPA to give each business one point of contact for all Federal environmental routine reporting requirements, and to otherwise minimize the administrative burdens of environmental reporting. This "one-stop" reporting system would use a common nomenclature throughout and use language understandable to businesspeople, not just to environmental specialists. Its electronic version would also provide pollution prevention information to participating businesses. The bill would also give each State, tribal or local agency the option of reporting information to one point of contact at EPA. My staff has discussed this bill with EPA, and received much thoughtful and constructive technical advice. We have been able to respond to the great majority of issues raised by EPA. One important issue remains, however the deadline by which EPA is to perform the activities required by the bill. Our draft bill would establish a deadline 4 years after the effective date. Would you be able to support a 4-year deadline? Otherwise, could you suggest a more appropriate timeline, and agree to work with us as we move this bill through Congress? Response. While EPA staff have held discussions with your staff on technical issues related to your draft legislation, the Administration has not yet developed a position on the bill. It would, therefore, be premature for me to comment on the deadline contained in the draft language, or on other aspects of the bill. We are happy, however, to continue to work with you regarding the draft bill. Through the recently established Office of Environmental Information, EPA is moving ahead on numerous information management and security issues, without the need for legislation. We are, as part of our Integrated Information Initiative, continuing development of a Central Receiving Facility. The Facility will provide the option of one point of contact for both states and regulated entities which report directly to EPA. Central Receiving also will facilitate our move to electronic reporting. We also are proceeding with plans to adopt, in partnership with states, data standards which will provide the common nomenclature needed to facilitate integration of environmental data, and to aid analysis and interpretation for users. RESPONSES BY MICHAEL MCCABE TO ADDITIONAL QUESTIONS FROM SENATOR GRAHAM Comprehensive Everglades Restoration Plan Question 1. Everglades restoration is anticipated to be a major component of committee action this year. It is also a large priority for the state of Florida. I am concerned that EPA recently could not provide answers to detailed questions on the Army Corps of Engineers' Restudy restoration plan. Are you planning to dedicate staff to ensure that EPA can participate in this committee's debate on the Restudy authorization? Response. EPA thanks the committee for holding the recent field hearing on the Comprehensive Everglades Restoration Plan (CERP) and allowing the Agency to provide its vision on restoring the Everglades and the CERP. We look forward to a continued dialog with members of the Senate Environment and Public Works Committee, the Army Corps of Engineers and all interested parties in order to ensure the successful restoration of one our Nation's most precious resources. The Agency currently is preparing clarification and detailed answers to questions that Members had in regards to the Administrator's testimony. We are prepared to provide the committee assistance as it considers the restudy authorization. The EPA is firmly committed to providing the necessary staff resources to assist in implementing the Comprehensive Everglades Restoration Plan. Currently, EPA's Office of Water, Region IV and the South Florida office of Region IV provide scientific, legal, and technical expertise to the Everglades restoration effort. EPA also provides a full time staff person at the Army Corps of Engineers' Jacksonville Mississippi office to assist in the restoration effort. TMDLS Question 2. In passing the Clean Water Act the Congress expressly recognized the primary responsibility and right of the States to prevent, reduce and eliminate pollution and to plan the development and use of... land and water resources (33 USC 1251(b)(1972). The TMDL proposal however calls for EPA involvement in state implementation plans-which can be expected to result in EPA decisions regarding local land use. In this regard: Question 2a. What is EPA's authority for involvement in TMDL implementation plans? Response. Section 303(d) requires that TMDLs, whether established by a State, Territory, or authorized Tribe, or by the Administrator, "be established at a level necessary to implement the applicable water quality standards." As the implementation plan provides a description of the voluntary and regulatory programs and authorities, EPA has proposed that one way to address this is to review the implementation plan and determine that there is "reasonable assurance" that the TMDL will be implemented and will result in the achievement of water quality standards. Question 2b. In what manner will EPA recognize the primacy of State and local involvement in the implementation of the TMDL program? Response. Section 303(d) requires states to identify waters and establish TMDLs, and submit them to EPA for review. EPA approves or disapproves the list and TMDLs. If EPA disapproves, then the statute requires EPA to identify the water or establish the TMDL. EPA expects States to take the lead in developing and implementing TMDLs and does not expect to be directly involved in development or implementation of most TMDLs. As part of the process, EPA will work with the States and other stakeholders. Question 2c. Is it expected that EPA's direct involvement with the States in the TMDL implementation plans will be more efficient than state and local implementation solely under broad EPA guidance? Response. As noted in the response to the previous question, EPA expects States to take the lead in developing and implementing TMDLS. EPA does not expect to be directly involved in development or implementation of most TMDLs. EPA will, as directed by the Clean Water Act, review State-developed TMDLs to assure that they comply with the requirements of the Act. Under the proposed rule, this includes review of implementation plans submitted by States as part of the TMDL. EPA believes that this proposed approach, rather than reliance solely on broad guidance, is needed to provide "reasonable assurance" that approved TMDLS will result in the achievement of water quality standards. Question 2d. Has EPA identified the economic costs of the TMDL proposals and increased EPA staff requirements of implementing the plan? Response. EPA correctly certified that the proposed rule would not have a "significant impact on a substantial number of small entities." EPA completed the economic assessment of the proposed regulation revisions consistent with guidelines established by the Office of Management and Budget (OMB) and published the proposal for public comment following OMB approval. It is important to note that the economic assessment of the proposed rule defines costs and benefits associated with the changes that the proposed rule would make in existing regulations. EPA did not estimate, and was not required by law or Executive Order to estimate, the costs of complying with the requirements of section 303(d) of the Clean Water Act as passed by Congress in 1972 or the existing regulations that States and EPA now rely on to implement the TMDL program. Our preliminary estimates, subject to additional work, are that state costs will increase by $10-24 million annually to implement the rule, and that the private sector will expend approximately $17-65 million annually for on-the-ground actions needed to implement the TMDLS. These costs are relatively low because the major assumption behind the estimated costs is that full implementation of required regulatory programs such as NPDES, including storm water and installation of best available technology as well as voluntary, incentive-based programs such as section 319 grants and the Conservation and Wetlands Reserve Programs-will be sufficient, in most cases, to achieve water quality standards. EPA expects that each Regional Administrator will, consistent with other water program priorities, provide adequate technical assistance and oversight for the TMDL program. EPA will periodically evaluate its staff needs for TMDLs. Question 2e. EPA's proposed regulations on TMDLs would involve the EPA in many strictly local decisions. For example, land use planning typically occurs over many years as city and county plans are prepared, subjected to public notice and comment and implemented. How does EPA intend to implement these programs and provide, for example, timely review, approval and monitoring of all state and local implementation plans so that state and local agencies can continue to respond in a timely manner to their constituents? Response. EPA expects that states, in concert with local authorities, will develop and implement TMDLS. For implementation of TMDLS, EPA recognizes that local programs and planning processes will play a major role. We expect that these local programs and processes will be integral in state schedules, which will also include milestones for monitoring progress in implementation. With respect to EPA review and approval, under the proposed rule EPA will take action to approve or disapprove a TMDL within 30 days of the state's submission. RESPONSES BY MICHAEL MCCABE TO ADDITIONAL QUESTIONS FROM SENATOR TMDLS THOMAS Question 1. What is EPA's Statutory authority for asking States to list and develop TMDLs for waters impaired and threatened by pollutants from nonpoint source and by pollutants from air deposition? Response. EPA has the authority to "include NPS pollution" in the TMDL program under section 303(d). In the preamble to the August 20, 1999 proposed TMDL rules, the Agency presents, in some detail, its legal analysis concluding that the Clean Water Act provides authority to require listing waterbodies impaired by pollution from either point sources, nonpoint sources, or both, and establishment of TMDLs for pollutants in these waters (see pages 46020-21 in the preamble of the proposed rule). The key point is that section 303(d) is intended to identify waters where the applicable water quality standard is not attained and develop TMDLs for these waters that "implement" the standards (section 303(d)(1)(A) and (C)). The fact that section 303(d)(1)(A)'s identification provisions reference "effluent limitations" required by section 301 does not limit the section's reach to waters impaired only by point sources. Because nonpoint source-only impaired waters can never be returned to compliance with applicable water quality standards simply by application of section 301 effluent limitations, identification of such waters on a State's section 303(d) list is consistent with the plain meaning of the words in section 303(d)(1)(A). This key conclusion is supported by several additional considerationsIn drafting section 303(d), Congress did not expressly exclude NPS impaired waters from the Act's identification and TMDL establishment requirements. By placing section 303(d) within section 303 (whose provisions include water quality standards and implementation plans) instead of section 301 (which deals with point source controls), Congress gave TMDLs and section 303(d) lists a broad, allsources "water quality-based" scope, rather than a more narrow, point source-only focus. The conclusion that section 303(d) includes NPS impaired or threatened waters is also consistent with Act's broad objective to "restore and maintain the chemical, physical, and biological integrity" of all the nation's waters. Enactment of section 319 in 1987 in no way limits consideration of nonpoint sources in section 303(d). Section 319 is designed to "reduce" pollution from nonpoint sources generally and is not designed to result in attainment of water quality standards in specific polluted waters. The reductions in pollution accomplished under section 319 programs reduce the extent of NPS pollution and reduce the number of waters that become polluted. Thus, the program complements and supports more focused, waterbody specific efforts under section 303(d) to bring together all sources in an effort to restore the polluted water and attain water quality standards. Finally, it is critical to note that the conclusion that the polluted waters lists and TMDLS should include NPSs does not mean that these NPSs are subject to any new controls or the requirement to have a Clean Water Act permit. Question 2. What is EPA's statutory authority for applying drinking water standards in ambient waters? Response. The TMDL proposal does not require that ambient water quality meet drinking water standards (Maximum Contaminant Levels or "MCLs") established under the Safe Drinking Water Act. The Safe Drinking Water Act MCLs apply to treated drinking water delivered to customers by public water systems. The rule does, however, reflect the Clean Water Act's requirement in section 303(d)(1)(C) that TMDLs be established at a level necessary to implement applicable water quality standards. Such Clean Water Act standards include the waterbody's designated use (including public water supply) and numeric or narrative criteria adopted to ensure the use is met. In addition, Section 303(d) says that States shall establish a priority ranking for establishing TMDLs taking into account "the severity of the pollution and the uses to be made of such waters." EPA's TMDL proposal reflects the Agency's belief that demonstrable threats to human health, in the form of polluted drinking water sources, be given high priority by States as they establish TMDLs. This is articulated in section 130.28 of the proposal which requires States to assign a “high priority" on their section 303(d) lists to a waterbody if it is "designated in water quality standards as a public drinking water supply, used as a source of drinking water and the pollutant for which the waterbody is listed as impaired is contributing to a violation of and MCL." UNITED STATES SENATE COMMITTEE ON ENVIRONMENT ROOM 410 DIRKSEN BUILDING INFORMATION REQUESTED OF PRESIDENTIAL In order to assist the Committee in its consideration of nominations, each nominee is requested to The original and forty (40) copies of the requested information should be made available to |