Lieberman Questions Administration Commitment to Clean Air Litigation

WASHINGTON – Governmental Affairs Committee Ranking Member Joe Lieberman, D-Conn., Friday sought to determine if the Administration would be true to its word and pursue clean air litigation against the Tennessee Valley Authority. In a letter to Environmental Protection Agency Acting Administrator Marianne Horinko,, Lieberman noted that a top EPA official told two Senate committees last year that proposed changes to New Source Review regulations would not threaten pending enforcement actions – like the TVA case – against polluting, coal-fired power plants. A recently released report by Public Citizen, however, calls the testimony of EPA Assistant Administrator Jeffery Holmstead into question.

“Aside from the exceedingly troubling implication that an EPA official misled the Senate Committees, the Public Citizen report raises important questions about whether the EPA intends to let off the hook those power plants it has long argued to be in violation of the Clean Air Act,” Lieberman wrote. Lieberman asked Horinko what EPA was doing to protect the public from coal-fired power plant pollution and whether EPA had referred the TVA case to the Justice Department to prove its case that TVA violated the Clean Air Act. Following is full text of the letter: October 10, 2003 The Honorable Marianne Lamont Horinko Acting Administrator Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 Dear Administrator Horinko: As you know, I and other Members of Congress have repeatedly expressed concern that the Environmental Protection Agency’s (EPA) efforts to change its New Source Review regulations would threaten longstanding enforcement actions the agency has against a number of power plants alleged to have violated important provisions of the Clean Air Act. Last year, Assistant Administrator Jeffrey Holmstead told two Senate committees: “we do not believe these [proposed rule] changes will have a negative impact on the enforcement cases.” A report released yesterday by the watchdog group Public Citizen, however, calls that assessment into question. Aside from the exceedingly troubling implication that an EPA official intentionally misled the Senate Committees, the Public Citizen report raises important questions about whether the EPA intends to let off the hook those power plants it has long argued to be in violation of the Clean Air Act. I am writing to inquire about the status of one of these cases in particular, in which EPA concluded that the Tennessee Valley Authority (TVA) violated the Clean Air Act when it undertook fourteen rehabilitation projects at nine coal-fired electric power plants without obtaining permits. Most of TVA’s coal-fired electric power plants were built between the 1950’s and the 1970’s. During the period between 1982 and 1996, TVA replaced various boiler components. In 1999, EPA concluded that these projects did not constitute the type of “routine maintenance” which would qualify for an exception contained in the Clean Air Act, as TVA claimed.1 Rather EPA concluded that the projects triggered several statutory requirements, including New Source Review2 and New Source Performance Standards.3 In November 1999, EPA issued an administrative compliance order (ACO) to require that TVA undertake several compliance initiatives. TVA refused to comply with the terms of the ACO. (Noncompliance with the ACO automatically triggered civil and criminal penalties.) This was followed by protracted negotiations between EPA and TVA and the creation by EPA of a special Environmental Appeals Board to adjudicate the issue of whether TVA had violated the CAA when it undertook the plant modifications.4 The Environmental Appeals Board affirmed the ACO. In 2000, TVA petitioned the Eleventh Circuit Court of Appeals to review issuance of the order. On June 24, 2003, the Eleventh Circuit ruled that penalties could not be imposed for noncompliance with the terms of the ACO, concluding that the ACOs are constitutionally flawed. Instead the Court said that EPA must “prove the existence of a CAA violation in district court, including the alleged violation that spurred the EPA to issue the ACO in this case.”5 In other words, TVA was free to ignore the order. EPA’s petition for a rehearing of the case was denied by the Eleventh Circuit on September 16, 2003. Air pollution has serious consequences for public health. According to estimates for premature mortality and asthma attacks prepared by EPA’s own consultant, the TVA plants subject to NSR enforcement actions contribute to 900 premature deaths and 19,300 asthma attacks annually.6 Thus, the continuing failure to reduce pollution from these plants puts at risk the health and well being of thousands of Americans. While I am extremely concerned about the implications of the Eleventh Circuit opinion for the effective implementation of the Clean Air Act, I am also interested in knowing what EPA is doing to insure that the pollution is cleaned up. Therefore, I would appreciate your response to the following questions: 1) Please identify the actions which EPA is taking to insure that pollution from the plants does not continue to endanger public health. 2) Has EPA referred this matter to the Department of Justice so that it may prove in court that the violations occurred? If so, when did the referral occur and what has been the result? If not, why not? 3) Now that the Eleventh Circuit has denied a petition for rehearing in this case, has EPA recommended to the Department of Justice that it seek a writ of certiorari at the US Supreme Court on the Eleventh Circuit’s ruling regarding the constitutionality of the administrative compliance orders? If not, why not? Thank you for your prompt attention to this matter. I would appreciate a response to this inquiry by close of business on Friday, October 24, 2003. Sincerely yours, Joseph I. Lieberman Ranking Member JIL:kjs 1 The Clean Air Act allowed existing facilities to avoid the expense of adding state-of-the art pollution controls. However, once plants are “modified” in a manner that significantly increases emissions, the Act’s requirements for permitting and pollution controls apply. 42 U.S.C. Sec. 7411(a)(4) EPA regulations provide an exception for “routine maintenance, repair, and replacement.” 42 C.F.R. Sec. 52.21(b)(2)(iii)(a). 2 Congress established the New Source Review program in 1977. It requires states to designate whether discrete areas meet National Ambient Air Quality Standards (NAAQS) for each listed pollutant and establish pre-construction permitting requirements for new and modified sources. For each area that meets the NAAQS, permits must, among other things, require installation of the best available control technology for each regulated pollutant. 42 U.S.C. Sec. 7475(a). New and modified sources of pollution in areas that fail to meet the standards must, prior to construction, obtain a permit which requires the sources to achieve the lowest achievable emission rate and to provide enforceable emissions offsets. 3 The New Source Performance Standards program requires that the EPA issue federal performance standards based upon the “best demonstrated technology” for categories of new stationary sourceds that cause air pollution and may reasonably be anticipated to endanger public health or welfare. 42 U.S.C. Sec. 7411(b)(1)(B). 4 The EAB was established because, at the time, EPA believed that it did not have authority to sue TVA in court. 5 Tennessee Valley Authority v. Whitman, Civ. No. 00-15936 et al. (11th Cir. June 24, 2003). 6 Abt Associates, “The Particulate-Related Health Benefits of Reducing Power Plant Emissions,” October 2000 [S-R Matrix modeling].