January 29, 2019

Chairs DeFazio, Napolitano Press EPA for Answers on Impacts of the Shutdown

January 29, 2019

The Honorable Andrew Wheeler

Acting Administrator

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue N.W.

Washington, D.C. 20460

Dear Acting Administrator Wheeler:

We are deeply concerned about the impacts of the recent government shutdown on public health, the protection of our environment, and our national, regional, and local economies. Yet, despite numerous requests from our staff to the U.S. Environmental Protection Agency (EPA) to understand these impacts, you have provided no substantive responses on the consequences of the lapse in appropriations to your legal responsibilities to protect human health and the environment.

Your lack of response is troubling for several reasons. 

First, the Congress has a constitutional responsibility to conduct oversight over the implementation of Federal laws by the Executive branch. As you know, the Committee on Transportation and Infrastructure has jurisdiction over several Federal statutes implemented through the EPA, including the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. 1251 et. seq.), the Oil Pollution Act (OPA) (33 U.S.C. 2701 et. seq.), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. 9601 et. seq.). Your lack of responsiveness to questions about the impacts of the shutdown undermines this Committee’s constitutional obligation to oversee the EPA’s implementation of these statutes and hides from the American public the real consequences that the shutdown may have had on their health, or on the health of their local environments or economies.

Second, we are aware that Federal law (31 U.S.C. 1342) allows a Federal agency to take action during a lapse in appropriations for “emergencies involving the safety of human life or the protection of property.” We have repeatedly requested information from you on specific impacts of the shutdown where a lapse in appropriations may result in suspension of Federal permitting, inspections, grants, oversight, response authorities (including emergency responses), or enforcement and compliance activities in the hopes of understanding whether any emergencies may arise involving the safety of human life or the protection of property. However, again, you have provided the Committee with no information on the impacts and consequences of this shutdown.

Finally, we strongly believe that stakeholders, regulated entities, Federal, State, and local governmental officials, and the American public all have a right to know that our nation’s Federal environmental protection statutes are being predictably, uniformly and fully implemented. Yet, your lack of candor with the Committee and lack of disclosure on the impacts of the shutdown make this virtually impossible to achieve, and in our view, undermine the faith the American people place in the equal enforcement of the law, and the protection of our families, homes, businesses, and natural environment.

Worse still, your staff is attempting to use the lapse of appropriations, itself, as a pretext to hide the shutdown impacts from Congress – suggesting in an email to our staff that EPA needs to clear with your Office of General Counsel “what [EPA staff] are exempted to answer.” Let us be clear, your obligation to respond to oversight questions from the committees of jurisdiction in the U.S. House of Representatives is not affected by a lapse of appropriations, and we expect you to respond to committee inquiries as quickly as possible.

The questions sent to EPA on January 9, 2019 (and to which we have received no substantive response) are listed below. We are looking for specific information on the following:

(1)        Any suspended investigation/remediation activity under CERCLA resulting from the shutdown, as well as any removal activity that may have occurred or was postponed during the shutdown to date;


(2)        Under the Clean Water Act, specific information on any suspended grant activity or work under the Great Lakes Restoration Initiative, Long Island Sound, Chesapeake Bay, Puget Sound, San Francisco Bay, Gulf of Mexico, National Estuaries Program, or other regional Clean Water Act program;


(3)        Under the Clean Water Act, the status of any existing 402 permits in need of approval/review (either under EPA-led states/territories, or as oversight to State-approved authorities);


(4)        Under the Clean Water Act, the status of EPA oversight of pending 404 permits (number, process as a result of shutdown);


(5)        Under the Clean Water Act, the status of ongoing rulemaking efforts related to the Waters of the United States;


(6)        Under the Clean Water Act, any suspensions or implications of the shutdown on grants under the 106, 319, and 104 authorities;


(7)        Under the Clean Water Act; any suspensions or implications of the shutdown onsite inspections of Clean Water Act permitted facilities;


(8)        Under the Clean Water Act/OPA, any suspension of activities or implications of the shutdown on ongoing site inspections or response authorities;


(9)        Under CERCLA/Brownfields, any suspension of activities or implications of the shutdown on ongoing brownfields site assessment/cleanup, or state activities;


(10)     Under any EPA authority, specific information any suspensions, slowdowns, or other implications to ongoing civil or criminal actions by EPA’s Office of Enforcement and Compliance Assistance (including referrals and support assistance to the U.S. Department of Justice); and


(11)     Under all EPA authorities, any incurred de-mobilization or other increased costs resulting from a lapse in regular appropriations for ongoing projects/grants/contracts.


We request a reply to this letter as soon as possible, but no later than February 7, 2019. If you have any questions, please contact us or have your staff contact Ryan C. Seiger of the House Committee on Transportation and Infrastructure at (202) 225-0060.





PETER A. DeFAZIO                                                 GRACE F. NAPOLITANO  

Chairman                                                                     Chairwoman

                                                                                    Subcommittee on Water Resources

                                                                                    and Environment