Van Hollen Presses EPA on Bay Enforcement Authority, Telework Policies

Today, during a Senate Environment and Public Works Committee Hearing, U.S. Senator Chris Van Hollen (D-Md.) pressed Douglas Benevento, nominee to be Deputy Administrator of the U.S. Environmental Protection Agency (EPA) on the Agency’s authority to enforce the Chesapeake Bay Agreement TMDL pollution reduction targets. The Senator also questioned Benevento, who currently serves as the EPA’s Associate Deputy Administrator, on the Agency’s recent reduction of telework policies. Lastly, the Senator discussed the current preparedness of the Nuclear Regulatory Commission (NRC) to carry on with its mission, given the possible impact of the coronavirus. A full transcript of the Senator’s exchange is below, and video can be found here.

SENATOR CHRIS VAN HOLLEN (D-Md.): Thank you Mr. Chairman. Congratulations to all of you on the nominations. Mr. Benevento, thank you for getting together yesterday, and I want to follow up on some of that conversation – especially as it relates to the Chesapeake Bay. Senator Cardin and I of course represent a big part of the Bay watershed, and we’ve been working for decades now with the federal government, state governments, local governments, cooperating to try to clean up the Bay.

We have the Chesapeake Bay Agreement. EPA plays a vital role – they’re kind of the glue that holds it all together. And states submit, of course, their watershed implementation plans, and we just saw those plans submitted late last year. And when we looked at the state of Pennsylvania’s plan, they were far short. EPA has found that they were far short in terms of preventing pollution from going into the Bay. In one measure on nutrients, they were only 75 percent toward the goal that we have to reach in order to meet the cleanup targets for 2025. And then, even if you look at that plan that falls short, they don’t have adequate financing.

So, number one, will you work with us to make sure that the Chesapeake Bay gets the resources it needs from all the funding streams of the federal government – EPA funding, as well as out of the Ag Bill – and that we target those, especially upstream, where we have a lot of non-point source pollution?

DOUGLAS BENEVENTO, EPA: Yeah, we’re happy to work with you, Senator, yes.

VAN HOLLEN: So – Pennsylvania has actually applied for a number of grants. Some of them have been to the Department of Agriculture. They’ve been denied, even though they have a big need. So I really – we need to make sure we have a commitment from EPA as the quarterback of this, to work with the other agencies to get it done.

Now, the other question is – if they continue to fall short – do you agree that EPA has what we call backstop authority? In other words, do you agree that EPA has the legal authority to enforce Pennsylvania’s compliance with the TMDL?

BENEVENTO: Yes, TMDLs are enforced – you know, TMDLs – so, I’m a former state regulator, so some of this speaks to me a little bit. You know, you do a water quality analysis that results in a TMDL, and then the TMDLs, of course, are the basis for permits that are issued. And that’s where EPA can step in – even if it’s a state permit – and take a look at the permit to determine whether it’s meeting what’s in the TMDL.

VAN HOLLEN: Right, because there’s been some ambiguity coming from EPA on this question, so this is an opportunity to clarify it. Do you agree that EPA has the legal authority to hold Pennsylvania legally accountable toward meeting the targets that EPA believes are necessary to achieve the goals in 2025?

BENEVENTO: Within the confines of the Clean Water Act, we certainly have a lot of authority, yes.

VAN HOLLEN: So, just to press the point a little bit, do you agree that you could take Pennsylvania to court to enforce these provisions? Because if EPA says it doesn’t have the authority, you know you’re very likely to get a lawsuit quickly from the State of Maryland and others to enforce that authority. So we’re seeking clarification as to whether EPA will use its legal authorities to hold Pennsylvania responsible for meeting the targets if you’re not satisfied that they’re on track.

BENEVENTO: Yes, with the legal authorities that we have, we could hold a state permit – we could intervene in a state permit, yes.

VAN HOLLEN: Okay. The qualification of the permit is where we’re going to have to maybe follow up.

So let me ask you about the telework, given the coronavirus.

BENEVENTO: Oh, yes.

VAN HOLLEN: Agencies are obviously having to look at telework. The EPA, I know that – you’re now permitting more telework – but I’m just reading a headline from June 26, 2019 from the Government Executive, which is a publication that follows activities in the federal government. Headline: “EPA unilaterally imposes new union contract slashing telework, easing firing.” This has been an ongoing subject of concern to EPA employees – that this Administration came in and cut back on telework. Were you part of that decision to cut back on telework?

BENEVENTO: No.

VAN HOLLEN: Did you support the decision to cut back on telework?

BENEVENTO: I support the Administration, yes.

VAN HOLLEN: So you supported their proposal to cut back on telework.

BENEVENTO: I mean, I support the policies of the Administration. I do.

VAN HOLLEN: So can you give – in 2017, the EPA Inspector General reported that EPA’s existing telework policy at that time was working. That there were no performance issues. Do you have any evidence to suggest that there were performance issues with the prior telework policy?

BENEVENTO: I don’t have any evidence with me, no.

VAN HOLLEN: Okay. So you support the Administration’s position, not based on any information, but just because it was the Administration’s position, is that right?

BENEVENTO: Well, that was the policy that was put out. I was a regional administrator at the time, and so we received the policy, and we implemented it.

VAN HOLLEN: Okay. So you reduced people’s telework opportunities?

BENEVENTO: Consistent – yeah, consistent with the direction that we received. Yeah.

VAN HOLLEN: Right. It was unilaterally imposed. Yeah, okay. So now, obviously given the current situation, people are looking to telework options. But we should also – on a bipartisan basis, the Congress has said the federal government needs to have an option of telework, obviously, it needs to meet performance standards – so very disappointed that EPA has gotten rid of the old one.

To the gentleman at NRC, thank you for being here, I know that – Mr. Chairman, could I have just a moment?

SENATOR JOHN BARRASSO, CHAIRMAN: Please, yes.

VAN HOLLEN: I know that when you had the earlier virus – I think the H1N1 – you actually put in place, as an agency, a plan that would both protect your employees but also make sure your critical mission continued. Are you taking – I know, Mr. Wright, I know you’re there now –are you taking measures right now to make sure we have plans in place?

DAVID WRIGHT, NUCLEAR REGULATORY COMMISSION: Senator, thank you for the question. And yes, we are focused on ensuring the safety of our people. So we’re broadly sharing and implementing the CDC control guidelines to try to control the spread of the virus, number one. We’re also reviewing our continuity of operations plan. And just to your concern about telework, about 74% of our people have telework agreements right now. So we’re actively engaged on that issue. And then for our licensees, they’re also taking precautions that are consistent with the guidance that the industry’s following. They’ve got sequestration plans if they need to. They’ve got restricted site access for people not to be on the site if they’ve been out of the country in the last 14 days or so. We do have plans in place.

VAN HOLLEN: Okay, thank you. And Mr. Hanson, thank you for your service up here on the Hill and congratulations on the nomination.