[Senate Hearing 107-956]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-956
 
                       ENVIRONMENTAL ENFORCEMENT
=======================================================================

                                HEARING

                               BEFORE THE

     SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK, AND WASTE MANAGEMENT

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 12, 2002

                               __________

  Printed for the use of the Committee on Environment and Public Works










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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                      one hundred seventh congress
                             second session
                  JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana                  BOB SMITH, New Hampshire
HARRY REID, Nevada                   JOHN W. WARNER, Virginia
BOB GRAHAM, Florida                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California            GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon                    MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware           LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York     ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey           BEN NIGHTHORSE CAMPBELL, Colorado

                Ken Connolly, Democratic Staff Director
                Dave Conover, Republican Staff Director
                                 ------                                

     Subcommittee on Superfund, Toxics, Risk, and Waste Management

                  BARBARA BOXER, California, Chairman

MAX BAUCUS, Montana                  LINCOLN CHAFEE, Rhode Island
RON WYDEN, Oregon                    JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           JAMES M. INHOFE, Oklahoma
HILLARY RODHAM CLINTON, New York     MICHAEL D. CRAPO, Idaho
JON S. CORZINE, New Jersey           ARLEN SPECTER, Pennsylvania
















                            C O N T E N T S

                              ----------                              
                                                                   Page

                             MARCH 12, 2002
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey..     8
Inhofe, Hon. James M. Inhofe, U.S. Senator from the State of 
  Oklahoma.......................................................     4

                               WITNESSES

Johnson, Barry L., adjunct professor, Rollins School of Public 
  Health, Emory University.......................................    13
    Prepared statement...........................................    50
    Responses to additional questions from Senator Smith.........    53
Schaeffer, Eric, consultant, Rockefeller Family Fund.............     9
    Prepared statement...........................................    31
Segal, Scott, partner, Bracewell & Patterson, LLP................    15
    Prepared statement...........................................    33

                          ADDITIONAL MATERIAL

Charts:
    Cuts in EPA Enforcement Staff Levels.........................    21
    Negative Trends in Environmental Enforcement at EPA..........    22
Letter, Resignation of Eric Schaeffer, Director, Office of 
  Regulatory Enforcement, Environmental Protection Agency........     3
Statement, International Brotherhood of Boilermakers, Iron Ship 
  Builders, Blacksmiths, Forgers and Helpers, AFL-CIO............    50
Summaries:
    Electric Reliability Coordinating Council, White Paper on 
      Clarification of New Source Review.........................    37
    The True Nature of Repair and Replacement....................    40
















                       ENVIRONMENTAL ENFORCEMENT

                              ----------                              


                        TUESDAY, MARCH 12, 2002

                               U.S. Senate,
         Committee on Environment and Public Works,
        Subcommittee on Superfund, Toxics, Risk, and Waste 
                                                Management,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:03 a.m. in 
room 406, Senate Dirksen Building, Hon. Barbara Boxer (chairman 
of the subcommittee) presiding.
    Present: Senators Boxer, Inhofe and Corzine.

OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Boxer. I will call the committee to order.
    I would ask all of you on the first panel to please take 
your seats here, because what we are going to try to do is a 
very seamless hearing. We have only one panel. Senator Inhofe 
and I will make our opening statements. If any other colleagues 
come, they will do that as well.
    What we are going to try to do because we are really 
looking at one basic issue--the issue of enforcement--and I 
think we may be able to complete this before the vote is 
completed on the floor, which I understand is going to start at 
11 a.m., which is helpful, from 10:45 a.m., I think.
    So anyway, it looks like we should be able to move quickly 
and get all the information we need.
    Today, the Superfund, Toxics, Risk and Waste Control 
Subcommittee will hear about the state of environmental 
enforcement at the EPA and what might be in the works for 
environmental enforcement in the future.
    I want to make it very clear that we invited Administrator 
Whitman to be here, or anyone that she would send, and they 
declined.
    I am also very grateful to Senator Chafee, who is the 
ranking member of the subcommittee, for his support on holding 
this hearing.
    The body of scientific evidence supporting the need for 
quick and effective action to reduce our communities' exposure 
to pollution continues to grow. Given the central role 
enforcement plays in public health protection, any change in 
policy on environmental enforcement requires close scrutiny. I 
think what I am about to say now is key to the whole debate. 
There are a number of ways environmental protections can be 
rolled back. One very straightforward way is to change the law. 
The process of changing the law is a public process. 
Stakeholders make their case. Issues go through committee. 
Votes are taken. When efforts are made to change a law, the 
process is transparent.
    However, there is a more subtle way that environmental 
protections can be rolled back. Cuts in personnel and cuts in 
pollution control targets can also result in less environmental 
enforcement. The difference is that this approach is not so 
public. No vote is taken on the change of plans. There is much 
less transparency. It is harder to hold those responsible for 
the rollbacks accountable. Is it any wonder which course this 
Administration is following? Not to me.
    We are here today to shine a bright light on what is 
happening to environmental enforcement at the EPA and what the 
Bush administration plan seems to be for the future of 
environmental enforcement.
    EPA's own documents paint a disturbing picture about the 
Administration's plans for environmental enforcement. First, 
let's take a look at environmental enforcement resources. This 
chart comes from EPA's own operating plan and budget request. 
This is from an internal document that EPA has so far refused 
to share with us. We have gotten it through other sources. This 
document shows that between fiscal year 2001 and 2003, there is 
an 18 percent cut in the staff resources that can be devoted to 
inspections, and an 11 percent cut in civil enforcement.
    Let us also take a look at EPA's projections for 
accomplishments in environmental enforcement from 2001 to 2003. 
Again, using EPA's own budget numbers, there are substantial 
declines in enforcement. This Administration's plan is to 
significantly reduce inspections, and the blue is 1901, the red 
is 1902 and the yellow is 1903. So the plan is to significantly 
reduce inspections, civil investigations, and voluntary 
disclosures.
    There is even a plan to reduce the amount of pollution 
taken out of our air, our water and our soil. This 
Administration's approach to rolling back environmental 
protection through hidden plans to undermine enforcement may 
not be as transparent as changing the law, but it is just as 
dangerous for the American people.
    Again, I am very sorry that EPA is not here today, but we 
will certainly accommodate them if they would like to have an 
opportunity to answer what I am saying today and what other 
colleagues might say, and of course we stand ready to continue 
this hearing at that time.
    We are very fortunate today to have Eric Schaeffer here to 
discuss EPA enforcement with us. Until quite recently, Mr. 
Schaeffer was the Director of Regulatory Enforcement at the 
EPA. It is my understanding he came to the Federal Government 
with the other George Bush. Is that correct, Mr. Schaeffer? He 
was responsible for a wide range of enforcement areas, 
including air, water, pesticides, toxics, and hazardous waste. 
He resigned from EPA and has expressed great concern about the 
future of enforcement.
    At this time, I would like to submit his letter of 
resignation for the record, and I of course welcome him. 
Without objection, we will do that.
    [The referenced document follows:]
Christine Whitman, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
    Dear Ms. Whitman: I resign today from the Environmental Protection 
Agency after 12 years of service, the last 5 as Director of the Office 
of Regulatory Enforcement. I am grateful for the opportunities I have 
been given, and leave with a deep admiration for the men and women of 
EPA who dedicate their lives to protecting the environment and the 
public health. Their faith in the Agency's mission is an inspiring 
example to those who still believe that government should stand for the 
public interest.
    But I cannot leave without sharing my frustration about the fate of 
our enforcement actions against power companies that have violated the 
Clean Air Act. Between November 1999 and December 2000, EPA filed 
lawsuits against nine power companies for expanding their plants, 
without obtaining New Source Review permits and the up to date 
pollution controls required by law. The companies named in our lawsuits 
emit an incredible 5.0 million tons of sulfur dioxide every year (a 
quarter of the emissions in the entire country) as well as 2 million 
tons of nitrogen oxide.
    As the scale of pollution from these coal-fired smokestacks is 
immense, so is the damage to public health. Data supplied to the Senate 
Environment Committee by EPA last year estimate the annual health bill 
from 7 million tons of SO2 and NO2: more than 
10,800 premature deaths; at least 5,400 incidents of chronic 
bronchitis; more than 5,100 hospital emergency visits; and over 1.5 
million lost work days. Add to that severe damage to our natural 
resources, as acid rain attacks soils and plants, and deposits nitrogen 
in the Chesapeake Bay and other critical bodies of water.
    Fifteen months ago, it looked as though our lawsuits were going to 
shrink these dismal statistics, when EPA publicly announced agreements 
with Cinergy and Vepco to reduce SOx and NOx emissions by a combined 
750,000 tons per year. Settlements already lodged with two other 
companies--TECO and PSE&G--will eventually take another quarter million 
tons of NOx and SOx out of the air annually. If we get similar results 
from the nine companies with filed complaints, we are on track to 
reduce both pollutants by a combined 4.8 million tons per year. And 
that does not count the hundreds of thousands of additional tons that 
can be obtained from other companies with whom we have been 
negotiating.
    Yet today, we seem about the snatch defeat from the jaws of 
victory. We are in the 9th month of a ``90-day review'' to 
reexamine the law, and fighting a White House that seems determined to 
weaken the rules we are trying to enforce. It is hard to know which is 
worse, the endless delay or the repeated leaks by energy industry 
lobbyists of draft rule changes that would undermine lawsuits already 
filed. At their heart, these proposals would turn narrow exemptions 
into larger loopholes that would allow old ``grandfathered'' plants to 
be continually rebuilt (and emissions to increase) without modern 
pollution controls.
    Our negotiating position is weakened further by the 
Administration's budget proposal to cut the civil enforcement program 
by more than 200 staff positions below the 2001 level. Already, we are 
unable to fill key staff positions, not only in air enforcement, but in 
other critical programs, and the proposed budget cuts would leave us 
desperately short of the resources needed to deal with the large, 
sophisticated corporate defendants we face. And it is completely 
unrealistic to expect underfunded state environmental programs, facing 
their own budget cuts, to take up the slack.
    It is no longer possible to pretend that the ongoing debate with 
the White House and Department of Energy is not effecting our ability 
to negotiate settlements. Cinergy and Vepco have refused to sign the 
consent decrees they agreed to 15 months ago, hedging their bets while 
waiting for the Administration's Clean Air Act reform proposals. Other 
companies with whom we were close to settlement have walked away from 
the table. The momentum we obtained with agreements announced earlier 
has stopped, and we have filed no new lawsuits against utility 
companies since this Administration took office. We obviously cannot 
settle cases with defendants who think we are still rewriting the law.
    The arguments against sustaining our enforcement actions don't hold 
up to scrutiny.
    Were the complaints filed by the U.S. Government based on 
conflicting or changing interpretations? The Justice Department doesn't 
think so. Its review of our enforcement actions found EPA's 
interpretation of the law to be reasonable and consistent. While the 
Justice Department has gamely insisted it will continue to prosecute 
existing cases, the confusion over where EPA is going with New Source 
Review has made settlement almost impossible, and protracted litigation 
inevitable.
    What about the energy crisis? It stubbornly refuses to materialize, 
as experts predict a glut of power plants in some areas of the United 
States. In any case, our settlements are flexible enough to provide for 
cleaner air while protecting consumers from rate shock.
    The relative costs and benefits? EPA's regulatory impact analyses, 
reviewed by OMB, quantify health and environmental benefits of $7,300 
per ton of SO2 reduced at a cost of less than $1,000 per 
ton. These cases should be supported by anyone who thinks cost-benefit 
analysis is a serious tool for decisionmaking, not a political game.
    Is the law too complicated to understand? Most of the projects our 
cases targeted involved big expansion projects that pushed emission 
increases many times over the limits allowed by law.
    Should we try to fix the problem by passing a new law? Assuming the 
Administration's bill survives a legislative odyssey in today's evenly 
divided Congress, it will send us right back where we started with new 
rules to write, which will then be delayed by industry challenges, and 
with fewer emissions reductions than we can get by enforcing today's 
law.
    I believe you share the concerns I have expressed, and wish you 
well in your efforts to persuade the Administration to put our 
enforcement actions back on course. Teddy Roosevelt, a Republican and 
our greatest environmental President, said, ``Compliance with the law 
is demanded as a right, not asked as a favor.'' By showing that 
powerful utility interests are not exempt from that principle, you will 
prove to EPA's staff that their faith in the Agency's mission is not in 
vain. And you will leave the American public with an environmental 
victory that will be felt for generations to come.
            Sincerely,
                       Eric V. Schaeffer, Director,
                          Office of Regulatory Enforcement.

    Senator Boxer. We will also hear from Dr. Barry Johnson. He 
is an experienced scientist and will share some of the latest 
research on the impacts of pollution on the public. We will 
hear from Mr. Scott Segal, a partner in a law firm that defends 
environmental enforcement cases.
    Now, we are going to continue with our opening statements. 
It is my pleasure to introduce Senator Inhofe, and of course to 
welcome Senator Corzine, who will immediately follow Senator 
Inhofe.
    Senator Inhofe, welcome.

 OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM 
                     THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Madam Chairman.
    I will share with them the bad news and good news I gave to 
you on the train over from the Capitol. The bad news is I have 
a 1-hour opening statement, but the good news I have about a 3-
minute voice.
    [Laughter.]
    Senator Boxer. Well, we will be happy to put the entire 
statement into the record.
    Senator Inhofe. In a report entitled, U.S. Downstream: The 
EPA Takes Another Bite Out of America's Fuel Supply, Merrill 
Lynch concluded that EPA's clean air regulations, ``will 
clearly have the impact of reducing existing U.S. refinery 
capacity.'' The reduction in refining capacity predicted by 
Merrill Lynch is the result of poorly thought out and 
implemented regulations. The solution to the high prices is not 
found in the cheap political gimmicks like releasing oil from 
the Strategic Petroleum Reserve. Rather, the solution relies on 
a national energy policy, including highly effective, but 
streamlined environmental regulations.
    I have to say, Madam Chairman, that what I am saying now is 
not a partisan thing because we tried way back during the 
Reagan administration, at that time I was working in the House, 
I believe you were too, to get them to have a national energy 
policy, and they did not do it. I thought surely when George 
the First came in from the oil fields, he would want to have 
one, and he did not want one either. The Clinton administration 
did not.
    But now we have an Administration that is really willing to 
work out something that is a national energy policy, the 
cornerstone of which is going to lessen our dependence upon 
foreign countries for our ability to have energy. I sometimes 
on the Senate floor talk about this 57 percent dependency that 
we have on foreign countries, and the most rapidly increasing 
contributor to that is the country of Iraq. So, the bottom line 
is it is ludicrous that we should be dependent upon Iraq for 
our ability to fight a war against Iraq.
    It is a very serious thing, Madam Chairman. I think that 
when well thought out and reflecting consensus, environmental 
regulations can certainly provide benefits to the American 
people. But when regulations are placed into effect without 
adequate thought, they are likely to do more harm than good. 
Poorly designed environmental regulations are and will continue 
to be a large contributor to our energy policy and our energy 
problems.
    Now, we have an Administration that has said we are going 
to have an energy policy. That takes into consideration all 
these things that we are talking about this morning.
    So we as a Nation need to re-think the manner in which we 
approach regulation. We all need to keep an open mind during 
the debates on various regulatory reform initiatives. I was 
very disheartened to hear that these were, ``sneak attacks on 
the environment.'' In fact, it is just the opposite. If we re-
think regulation, we can be in a better position in the future. 
We could find ourselves in a place where we can have far 
greater environmental protection and more reliable and diverse 
energy sources.
    I had a chart that I was wanting to show at this point, and 
I guess they did not show up with it, but it was on price 
spikes and how much the American people have to pay for 
increased fuel. So I would like to have that entered at this 
point in the record, even though I do not have it here.
    Senator Boxer. Without objection, so ordered.
    Senator Inhofe. Congress and the executive branch must do a 
better job of understanding how these various layers of 
regulations impact sectors of the economy and of industry. For 
example, refineries, who are currently working at 100 percent 
capacity, are going to be simultaneously hit with a number of 
regulations in the next few years, such as the tier two and 
sulfur diesel rules. Now is the time to work together on these 
and other regulations to not only achieve the environmental 
goals, but also ensure no disruption in fuel supply, which 
would cause price spikes as we showed several times to this 
committee.
    There is no better example of a poorly designed regulation 
than New Source Review. I can remember when I was chairing the 
Clean Air Subcommittee--Senator Corzine, before the Democrats 
became the majority, we had a hearing in the State of Ohio. We 
had people testifying and one came in with a 12-inch pipe that 
had to be changed. That particular pipe set off the New Source 
Review, a very expensive process. This is at a time when we are 
already at 100 percent refinery capacity.
    As many of you know, last year Senator Breaux and I sent 
the original letter to Vice President Cheney in his capacity as 
Chairman of the National Energy Policy Development Group, the 
EPA's New Source Review enforcement, flawed and confusing 
policies will continue to interfere with our Nation's ability 
to meet our energy and fuel supply needs.
    We strongly urged that the Administration take into account 
these concerns in developing its national energy policy. New 
Source Review is a 20-page regulation which needs more than 
4,000 pages of guidance documents to explain it. I have to say, 
Madam Chairman, that I consider this to be a violation. This 
took place without hearings, without input into these 4,000 
pages of documents to explain 20 pages, and nobody still seems 
to understand it.
    In addition to no hearings being confusing, I think that 
New Source Review is a classic example of regulation through 
guidance in violation of the Administrative Procedures Act. I 
would like to ask that the letter that was sent by Senator John 
Breaux and myself be entered into the record following my 
remarks.
    Senator Boxer. Without objection, so ordered.
    Senator Inhofe. From my tenure as Chairman of the Senate's 
Clean Air Subcommittee, I knew that New Source Review was a 
major issue for the energy sector. However, as a result of my 
letter, a number of companies from all over the country have 
contacted me to discuss their experience with the New Source 
Review program.
    What is worse is that under the New Source Review 
enforcement initiative, I saw examples of massive information 
requests from the Federal Government to companies which were, 
at the very least, dubious and more likely illegal. There were 
examples of information requests submitted to companies by the 
EPA employees without any official authorization. In some 
cases, EPA employees were driving around just handing these 
requests out like fliers. There were other information requests 
in the form of photocopied documents with the name of one 
facility scratched out, and the name of another facility 
penciled in.
    There were also requests which were addressed to one 
facility, but referred to operating units of another facility 
halfway across the country. In other cases, attachments were 
cited, but not provided. These attachments are absolutely 
essential for companies to comply with such a request. They 
cannot comply with the request without the attachments.
    Additionally, there were requests for information that had 
already been produced by companies. While the EPA sent me a 
lengthy response to my questions on these cases of abuse of 
power, EPA bureaucrats never produced their homemade 
information requests. I would like to submit my letter 
following the Breaux letter for the record, making the request 
to the EPA.
    Senator Boxer. Without objection, so ordered.
    Senator Inhofe. I fully support the strong enforcement of 
our Nation's clean air laws, but I will not stand by to watch 
some Federal employees use these tactics to serve their 
agendas, nor should the White House. As a former businessman, I 
personally dealt with similar behavior from my government, and 
that was one of my motivating factors to seek public office. I 
had to ask myself--I was out building companies and hiring 
people and expanding the tax base--doing all these things. Yet 
the chief obstacles that we continuously had came from the 
Federal Government.
    Now, many of the environmentalist community and Mr. 
Schaeffer call this review a sneak attack on clean air laws, 
and claim that politics have entered the enforcement of our 
laws. They know better. I know that Mr. Schaeffer has now left. 
He has resigned and he has taken a position with a liberal 
think tank that funds the NRDC and other companies like that. 
Mr. Schaeffer, I think this shows what your personal agenda was 
and probably was not consistent with that of the current 
Administration.
    President Bush cannot be expected to place layer after 
layer of regulations without any consideration of their energy 
implications. This is important. The extremist environmental 
community does not have to answer to the American people when 
energy prices go through the roof. They should have to, but 
they do not have to. They do not have to worry about the 
national security implications of greater dependency on foreign 
energy sources. But the President and we in the Congress do 
have to worry about that. There should be no time in our 
Nation's history when we should be more aware of the problems 
that are out there in relationship to our dependency on foreign 
sources for our ability to fight a war than today, since we are 
out in the middle of two major wars.
    As a Senator and grandfather, I want to ensure the cleanest 
environment for our Nation. However, I am convinced that 
environmental regulations can be harmonized with energy policy. 
I hope we will be able to accomplish that, Madam Chairman.
    Senator Boxer. Thank you so much. In the interests of 
collegiality, I really do have this very good throat lozenge 
for you.
    Senator Inhofe. Oh, thank you. You notice she waited until 
after my statement to give it to me.
    [Laughter.]
    Senator Boxer. I waited until you yielded back the rest of 
your time, but we are really glad that you are here presenting 
your view.
    I want to make sure that I can hold the record open in time 
to put into it the California experience in this last energy 
crisis where we did build a number of power plants and we used 
the new rules and we were able to do that without any 
deterioration in air quality. So without objection, I am going 
to keep the record open for that. I am going to say to my 
colleague, I agree that we should enforce these laws, and it is 
just going to be awful difficult to do it when you see these 
cuts in staff levels, which is not the issue you addressed. You 
really addressed the underlying laws, but I wanted to point out 
this is something I hope we can perhaps work together on 
because it is discouraging to see this. The internal documents 
show that we are really going to cut in half the amount of 
pollutants taken out of the air. Pollution reduction will be 
essentially cut in half, and that is very troublesome to this 
Senator, in any case.
    Senator Corzine, we welcome you. Please feel free to make 
an opening statement.

OPENING STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE 
                      STATE OF NEW JERSEY

    Senator Corzine. Thank you, Madam Chairman.
    That cut of half of the pollutants in the air is also 
troubling to me.
    I appreciate your holding a hearing on the enforcement of 
our Nation's environmental laws, and I welcome the witnesses 
and appreciate your spending the time with us.
    I think we all recognize that there has been great progress 
over the last three decades in cleaning up our environment. For 
example, Mr. Segal's testimony discusses the great strides we 
have made in improving air quality since the 1970's. Carbon 
monoxide levels are down 28 percent; sulfur dioxide levels down 
39 percent. These types of gains really cannot be minimized, 
and there is more ahead if we do the right things. I hope we do 
not snatch defeat from the jaws of victory, as our witness Mr. 
Schaeffer wrote in his letter, because many problems really do 
continue.
    In my State of New Jersey, every county has violations of 
the ozone standard. Many of those are a function, by the way, 
of power plants in States to the west and south where we are 
downwind from. In addition, New Jersey has 111 sites on the 
Superfund national priorities list, the most in any State in 
the Nation, and 5 more sites proposed for listing. Believe me, 
my constituents ask what we are doing about that and whether we 
are making progress on cleaning up and moving forward in 
enforcing polluter-pay principles.
    These are examples of the types of environmental problems 
that can only be addressed effectively by a strong Federal 
enforcement effort. You do not have to look beyond today's Wall 
Street Journal to see that we are not getting the job done on 
enforcement. Today's Journal contains a story on a draft EPA 
inspector general study that is reported to show that only 63 
percent of the 19,025 major sources of air pollution in this 
country have the permits that they were required to obtain in 
1997. Madam Chairman, I would ask that the Wall Street Journal 
article be submitted to the record.
    Senator Boxer. Without objection, so ordered.
    Senator Corzine. I am disturbed by the approach that the 
current Administration is taking on enforcement as outlined by 
the Chairman. Again, the President's budget proposes EPA 
enforcement cuts. Congress not only rejected similar cuts that 
were proposed last year, but rather directed EPA to hire more 
enforcement personnel to get back to fiscal year 2001 levels. 
It did not happen. Instead, the President has again proposed 
enforcement cuts--cuts that would take EPA personnel levels to 
approximately 200 positions below fiscal year 2001 levels.
    We have an Administration that is de-emphasizing 
enforcement in their budget. It is how they do business. EPA's 
operating plan shows that the Administration plans for 14,000 
facility inspections in fiscal year 2003, as opposed to the 
more than 20,000 inspections completed annually in fiscal year 
2000 and fiscal year 1999. Similar decreases are planned for 
civil investigations. I think the Chairman has outlined that.
    As Mr. Schaeffer's testimony points out, there are real 
environmental consequences from reducing enforcement. I think 
his resignation from the EPA over enforcement of the New Source 
Review provisions of the Clean Air Act shows that the 
Administration is giving favor to polluters over people when it 
comes to enforcement.
    You know, in New Jersey we have actually had several of our 
power companies, two different ones, actually cleanup plants 
and meet New Source Review standards. They paid the price, but 
I think they feel that they will get both economic benefit and 
they certainly will provide the public with a better state of 
our air quality in New Jersey, and we are proud of them for 
their efforts.
    I hope we can move forward. One of the unfortunate aspects 
of the enforcement of New Source Review is that we will not be 
seeing that happen in other places if we do not get moving.
    I would respectfully point out to Administrator Whitman, 
while she has been advising or has public said she advises 
companies not to settle with the government with regard to New 
Source Review, I would hope that she would stand back from 
being a power plant attorney and work on fulfilling the 
responsibilities of enforcing the law at EPA.
    I hope that we can have a good discussion of this. I think 
it is important that these issues are aired. I think that there 
are some legitimate concerns about the detail of some of the 
regulation, but that in no way, in my mind, pushes this away 
from actually dealing with New Source Review and cleaning up 
our air. We need the enforcement facilities to do it. I 
appreciate the witnesses today.
    Thank you, Madam Chairman.
    Senator Boxer. Thank you so much, Senator.
    Now, I am going to ask Mr. Schaeffer to give his opening 
statement. At this time, he is a consultant to the Rockefeller 
Family Fund. He is the former Director of the Office of 
Regulatory Enforcement, the U.S. EPA.
    I have to say, Mr. Schaeffer, by the way, my own personal 
view when I saw your letter, I was very moved because I thought 
this was a painful thing for you to have to do. I just want to 
commend you for saying what is in your heart and putting it on 
paper and being willing to come here today. I am very grateful.
    Please, let's begin with you.

  STATEMENT OF ERIC SCHAEFFER, CONSULTANT, ROCKEFELLER FAMILY 
                              FUND

    Mr. Schaeffer. Thank you, Madam Chair, and Senators.
    I appreciate the opportunity to testify today. I am 
grateful for your attention to what I think is an important 
issue.
    If I could, as to leaving because I disagreed with the 
Administration's environmental enforcement policy, I plead 
guilty to that. I think that is laid out in my letter. As to my 
personal or private agenda, I feel compelled to say that I have 
worked for Republicans, I have worked for Democrats. Last year, 
I got the John Marshall Award from Attorney General Ashcroft 
for my work on refineries. I was very proud of that. So this is 
just not a partisan issue for me and I hope it will not become 
one.
    If I could just briefly summarize my statement. I know you 
have others you want to hear from. I am going to make three 
points. First, the budget cuts are real and they are happening. 
They have happened and they are happening in the 2003 proposal. 
There seems to be confusion about that, and I appreciate your 
efforts to clear that up.
    Second, that is going to affect our ability to protect the 
environment through enforcement actions. These cuts are not 
free. There is not a free lunch here. This is going to affect 
our ability to do our job.
    Finally, this is not a problem we can dump on the States, 
as has been suggested. I think you may hear that directly from 
the States themselves.
    Just going first to the issue of what about these budget 
cuts, I think you have laid both the environmental impacts and 
the reductions in personnel out. I will just add two points to 
that. One is these are real reductions in people. They are 
accomplished by not replacing experts as they leave the Agency, 
no matter how valuable their expertise is. I think that in time 
it will be accomplished by shifting people to other functions.
    I take issue with the suggestion that these are somehow 
being absorbed by eliminating phantom employees who never 
existed. I can tell you that is not true. I invite you to look 
at that very closely. Any collection of accountants, the 
General Accounting Office or the IG I think can confirm for 
you. I would just ask, if you had committee staff leaving and 
were not replacing them, would you consider that a reduction? I 
think you probably would feel that after a while, and that is 
the same thing that is happening to us.
    The second point I want to make is we also have a contract 
budget. It is very important to us. It provides all the 
inspections for the Mobile Source Program. We do not have 
enough Federal employees to do those inspections. It provides 
us with lab and field work for cases. It helps to pay for 
expert witnesses. It helps us to manage documents. We are in 
desperate need of those resources.
    I must say, I came from a private law firm, like the one 
Mr. Segal is from, and we are very envious of the resources 
they have when we get to litigation. We are very short in the 
government. We need those contract dollars. They are cut 20 
percent between 2001 and 2003. If you look at the 2003 contract 
budget for enforcement, it is less than half what it was about 
5 or 6 years ago. Again, that is easily confirmed, so we are 
really getting shorted when it comes to resources.
    Now, you might say that is a good thing. We do not need 
Federal environmental enforcement. I would disagree, but you 
should have the facts to decide whether you think that is a 
good thing. You should know what is happening and I am glad you 
are looking at it.
    I have listed in my statement some issues I brought to 
management a couple of years ago about what a shrinking 
enforcement budget was doing to us. I am not going to read them 
all. They are in the testimony. I will just pick a couple of 
examples. We were unable to respond in the way we wanted to to 
desperate pleas for help from Region 9, investigating the MTBE 
problem in Santa Monica--as bad a problem as you will ever find 
environmentally. We gave them a little bit of contract support, 
not nearly what they needed and asked for.
    We had the same problem with the Southdown Quarry in New 
Jersey. In that case, we had tremolite asbestos, an 
investigation the State desperately wanted help with. We were 
just not able to provide the funds that were requested. We 
provided a little help, but not nearly what was asked for. I 
invite you to look at that.
    I am not saying the Agency did not patch together a 
solution. We tried to do our best, but we were not able to 
respond in the way we wanted to.
    You might say, and I have heard some say, it does not 
matter. We can rely on self-policing. We can rely on self-
auditing. Companies are better than they were 25 years ago. 
They have internalized environmental values. Enforcement is 
adversarial. It is outmoded. We do not need it anymore.
    I guess I would start by saying, we would not get 
compliance without the hard work of most companies who spend a 
lot of resources to try to stay in compliance with the law. 
There would be no Clean Air Act. There were would be no Clean 
Water Act without those efforts.
    So we appreciate them. We have made it easier, I think much 
easier for companies to find those problems, step forward and 
identify them, and fix them. We have an audit program that 
virtually eliminates penalties for companies that take that 
step. It was developed through the American Bar Association, 
with lots of input from defense counsel. We have even had the 
Washington Legal Foundation say it works pretty well. I have 
that framed somewhere since they hardly ever agree with us on 
anything.
    If you think that we can rely just on self-policing and do 
away with enforcement entirely, I think Enron is a good example 
of what can go wrong when you turn the job of compliance 
completely over to companies and you rely on a system of self-
regulation. I do not think we have come that far.
    What does this all mean for the environment? You have the 
Administration's projections I think unabashedly saying we are 
going to see less environmental protection as a result of these 
cuts. Let me give you several examples from recent cases. 
Senator Corzine mentioned ozone nonattainment. Three years ago, 
we settled cases against nine diesel manufacturers. These are 
manufacturers of diesel truck engines. Together, those 
settlements take over one million tons of nitrogen oxide a year 
out of the air. These are cases where the companies were 
cheating, to put it bluntly, by wiring their computers in these 
trucks to turn off emission control devices. The result was 
more NOx. We were able to recover over one million tons of NOx. 
If those settlements do not thrive, if they are not enforced, 
if we do not see that the promises in those settlements are 
carried through, we are going to have a lot of States that are 
not going to meet air quality standards. If you think this 
issue does not matter to States, you can talk to Bill Becker at 
the State Air Pollution Administration. They are very, very 
concerned about the settlement.
    Senator Corzine mentioned refining. Last year, we settled 
cases with over one-third, actually about one-third of the U.S. 
refining industry. I am talking about capacity. These 
settlements will take 150,000 tons of sulfur dioxide and 
nitrogen oxide out of the air. One of those companies in a 
recent news report said, one of their spokesman said, ``We 
settled because we expected the law to be enforced against our 
competitors. If that is not going to happen, and we are left 
holding these costs by ourselves, then that is unfair. We 
expect a level playing field.'' That comes from the company, 
not from EPA.
    I just want to add on the issue of interfering with the 
ability to make gasoline available to consumers at a reasonable 
price, ask the companies that settled. We have a third of the 
industry under settlement. I think they will tell you they can 
do the job. They can meet clean air requirements. The 
settlements are flexible. They are practical and get them into 
compliance with the law.
    One more point I cannot resist making, the economy changes 
the kinds of environmental problems we have to deal with. A 
decade ago, we did not have corporate hog farming on the scale 
that we see today. Now, you have 10 companies that together 
control more than half the pork production in the United 
States. Some of their facilities are enormous. We have one in 
the Midwest that produces more waste water than the entire city 
of St. Louis. That is without primary treatment, never mind 
secondary treatment.
    For those that think enforcement is done, I would invite 
you to come out on a hot summer night in one of those 
Midwestern States and stand downwind from one of those 
operations, and talk to the neighbors about how we are going to 
rely on voluntary programs to fix that problem. That would be a 
very interesting meeting. It would be a lively meeting.
    On the issue of EPA v. the States, which I think is an 
artificial conflict, I do not think you will see States and I 
do not think you will see States asking for cuts in the Federal 
enforcement program, which leads me to ask, who is asking for 
these cuts? The Administration is having trouble explaining 
them or even providing numbers. It is not coming from the 
States. I just direct your attention to a letter sent to 
Senator Jeffords by the Environmental Council of States 
representing State Commissioners. It says, in brief, States 
need more money to do environmental enforcement. That is true, 
but we did not ask you to cut the Federal enforcement program. 
In the letter they recognize EPA enforcement does different 
things. EPA is not the 51st State. We deal with a unique set of 
problems. We look at multi-State actors. We look at interstate 
transfer of pollutants. We deal with some big, tough polluters 
that are beyond the reach of some State programs.
    We do this together with States. I will just give you one 
statistic. In the settlements we had last year, we gave $25 
million in penalties to State programs. These are States that 
came into partnership with us and did the cases. They got $25 
million as part of the settlement. That is almost twice what 
the Administration is proposing to give to States in the budget 
this year. So we can work with States. We have been working 
with States. I do not think they want the Federal enforcement 
program cut.
    In the end, I really do not think this is about who does 
enforcement. I think it is about whether these environmental 
laws will be enforced at all. I welcome your attention to that. 
I do not think that question can be taken for granted. I would 
be pleased to answer any questions.
    Senator Boxer. Thank you very much. We will put all of your 
entire statements in the record. I appreciate that you spoke 
just from the heart because I think it is effective to do that. 
You certainly know your territory.
    Our next speaker will be Dr. Barry Johnson, who represents 
the Environment and Health Program at the Physicians for Social 
Responsibility. He previously served as Assistant Surgeon 
General and Assistant Administrator at the Agency for Toxic 
Substances and Disease Registry at the Public Health Service. 
Is that correct?
    Dr. Johnson. This is correct.
    Senator Boxer. Was that also under the first George Bush?
    Dr. Johnson. Yes.
    Senator Boxer. Yes. Dr. Johnson has worked for several 
decades in several senior government positions, on the impacts 
of toxics on human health.
    Before you begin, I just want to answer one point Mr. 
Schaeffer made about the fact that he hopes this will not 
become a partisan issue. So do I, because if it does, the 
environment loses. Just because I have to say I thanked Senator 
Chafee at the beginning of this, because Lincoln Chafee agreed 
that we could have this hearing. This hearing could have been 
held up for another week, but he agreed. So I want to again 
thank him. I also remember his father with great fondness 
because without him, we would not have had a lot of the 
landmark laws that we want to enforce.
    So, in my view, environment has never been a partisan 
issue. In my own State, it brings people together--75-80 
percent of the people asked say they are environmentalists, no 
matter whether they are Democrats, Republicans, Independents. 
They will cross-over vote, as you did Mr. Schaeffer in your own 
life. People will cross-over vote, in many cases depending on a 
candidate's stand on the environment. I can tell you that. In 
my State, it is absolutely a truism.
    So I hope you do not feel in any way defensive about 
anything or the position you find yourself in. This hearing was 
called by myself and Senator Chafee. A fight for a clean 
environment is not a partisan fight.
    So Dr. Johnson, with that, we welcome you. What I hope you 
will address is real-life consequences of non-enforcing our 
environmental laws. I hope that you will do that, and I welcome 
you. Please begin.

   STATEMENT OF BARRY L. JOHNSON, ADJUNCT PROFESSOR, ROLLINS 
           SCHOOL OF PUBLIC HEALTH, EMORY UNIVERSITY

    Dr. Johnson. Thank you.
    I am Barry Johnson representing the Environmental and 
Health Program, Physicians for Social Responsibility. PSR has 
had a longstanding concern about hazards in the environment and 
the importance of physician education about them. We welcome 
the opportunity to brief the subcommittee on matters of 
environmental health.
    My purpose today is to update you on recent research 
findings from several sources. The findings, PSR believes, are 
of great import to the public's health and support the need for 
greater action by government, private industry and 
nongovernment organizations to reduce the pollution load 
experienced by the American public.
    In previous testimonies to Congress, I noted that the body 
of published epidemiological research points to increased 
reproductive disorders in children born to parents who resided 
near Superfund and similar hazardous waste sites. The overall 
pattern of reproductive disorders included birth defects of the 
heart, neural tubes and oral cleft palate. Reduced birth rate 
has been reported in several studies. Similarly, British 
investigators using data from registers from congenital 
anomalies in five European countries have reported quite 
similar findings.
    Since 1999, British investigators have reported small 
excess risk of congenital anomalies and low and very low birth 
rates in populations living near landfill sites operating in 
Great Britain. In a different investigation, European 
investigators recently reported an increase in chromosomal 
anomalies in persons living close to hazardous landfills. The 
gravity of the adverse reproductive outcomes from exposure to 
hazardous substances and the environment led PSR to develop its 
birth defects and other reproductive disorders brochure and 
distribute it to more than 20,000 medical specialists in 
obstetrics and family medicine.
    The effects of release of hazardous substances from 
hazardous waste sites on cancer rates of communities near their 
sites are less clear than for reproductive outcomes. There are 
some published studies that show increased rates of cancers of 
the stomach, gastrointestinal tract and urinary bladder, but in 
my opinion there is not a current, consistent pattern of 
association of various cancers with proximity to hazardous 
waste sites.
    At this point in my testimony, I want to bring some quite 
recent studies to the subcommittee's attention. The effect of 
air pollution on children's health is a particularly important 
subject. Any disease or disability in children reduces the 
quality of life and brings expensive health care costs. Knowing 
the effects of environmental hazards on children's health is 
important because they are preventable--reduce the level of 
pollution.
    In regard to outdoor air pollution, one major study has 
reported serious consequences to children who resided in areas 
of California with measured levels of air pollutants. A key 
finding includes a correlation between lower lung function and 
more intense air pollution. This finding and others from the 
study are obviously of great concern to public health, and 
raise the obvious question about whether air quality standards 
for air pollutants are adequately protective of human health.
    Another very recent study was conducted by the American 
Cancer Society and associated investigators, and found fine 
particulates in sulfur oxide-related air pollution were 
associated with excess deaths from lung cancer, cardiopulmonary 
disease and from all causes of death combined. Scientific 
evidence has emerged from several studies that air pollutants 
may exert an even greater public health burden as a contributor 
to heart disease. For example, total suspended particulate 
levels in the air of Milan, Italy were associated with heart 
failure deaths. Similarly, a study of Philadelphia residents 
found that an increase in total suspended particulate levels 
was associated with deaths from cardiovascular disease.
    Although further research is needed to clarify the 
association between air pollution and fatal heart attacks, 
there is already sufficient data, I believe, to move forward 
with public education prevention actions such as public 
awareness and physician education campaigns.
    Senators as you know, the core principle of public health 
is to prevent disease and disability. Regarding toxicants in 
our communities, they should be eliminated or reduced to levels 
that do not cause adverse human health effects. EPA and States 
have made considerable progress in reducing environmental 
health risks, and the public health community supports further 
risk reduction based on the best scientific evidence. Now is 
not the time to gamble with unproven administrative procedures 
that may set back the progress already made.
    I look forward to any questions you may have. Thank you.
    Senator Boxer. I want to thank you, Dr. Johnson. I think 
you read the statement very calmly, but the impacts of it I am 
just frankly stunned at what you are telling us. I will ask you 
a number of followup questions.
    Now it is my pleasure to introduce our last speaker, Mr. 
Scott Segal. He is a partner with the law firm of Bracewell and 
Patterson. For the past 13 years, Mr. Segal has represented 
industries such as MTBE producers, trade associations and not-
for-profits. He currently represents electric utilities in 
their efforts to change the Clean Air Act enforcement policy--I 
assume change it in a way that would----
    Mr. Segal. Clarify the NSR program.
    Senator Boxer. Clarify--you clarify the Clean Air Act. 
Well, good. I thought you wanted to weaken it.
    Mr. Segal. No. We can use some clarity.
    Senator Boxer. This is good news. Anyway, Mr. Segal, I am 
teasing you. Please go ahead and take your time.

 STATEMENT OF SCOTT SEGAL, PARTNER, BRACEWELL & PATTERSON, LLP

    Mr. Segal. Thank you, Madam Chair, Senator Corzine.
    It is my pleasure today to address some of these 
environmental enforcement questions. I have to say at the 
outset that I have litigated against the Environmental 
Protection Agency before and the Department of Justice, who of 
course is the Nation's law firm. With all due respect to Mr. 
Schaeffer, I have never noticed them to be short-handed. I have 
never noticed them to be unwilling to litigate and anything 
less than enthusiastic.
    I would point out that the first two examples that Mr. 
Schaeffer cites--the tremolite mine, which is a quarry in New 
Jersey, and the MTBE in Region 9--I am familiar with both of 
those. What is interesting, and it goes to the point Mr. 
Schaeffer made, and frankly, Madam Chair, that you made, which 
is that this is a bipartisan issue, because both of those 
requests were made during the last Administration when the 
economy was in a relatively stronger situation and the ability 
to fund the EPA was at a higher level. I notice that making 
tough choices with respect to enforcement is a bipartisan 
enterprise. Tough choices need to be made under both 
Administrations.
    The one thing I would hope that no one believes is that all 
of the situations with trends in reductions in employees, 
particularly at the Senior Executive Service level at EPA, has 
something to do with a partisan finding or an attempt to punish 
the Agency. In fact, I have a GAO report here which talks about 
Senior Executive Service levels not just at EPA, but across the 
government. What it shows is that EPA at this very time is at a 
low point in a bell curve, or reverse bell curve, if you will, 
where it has more SES vacancies coming up because baby boomers 
are retiring and a lot of baby boomers work for the Agency and 
have served with great distinction for a number of years. That 
curve is ending in the next 3 years.
    So I would not want us to believe that somehow the Bush 
administration is responsible for demographic trends. The White 
House is a bully pulpit, but it is not responsible for all of 
that. There are natural cycles within agencies, and some of 
these cycles will correct themselves.
    I do not wish to diminish the seriousness of this chart 
that is up here or of any environmental concern, but I do want 
to observe that there is some good news. Senator Corzine 
referred to some of it, which is the reductions in air 
emissions over time. But to show you how significant those 
reductions in air emissions are, I would also remind that over 
that same period of 1970's to present, we have had an increase 
in energy consumption of some 41 percent and an astounding 
increase in gross domestic product of 140 percent, yet we have 
been able to reduce air emissions--the very types of air 
emissions that Dr. Johnson is talking about; particulate 
matter, for example, that he discussed, down 75 percent over 
that period.
    So we have been able to make gains. How have we done it? 
Through gains in efficiency in industry, that is part of it. 
How else have we done it? We have done it through enforcement 
of the Clean Air Act. We have done it through substantive 
provisions of the Clean Air Act, permit restrictions, State and 
local requirements, changes to siting--a number of different 
ways that it has been done.
    We have not done it, however, by the 1999 enforcement 
initiative of the New Source Review program. Unless a time 
machine was used, we have not done it by that. So of all the 
things that could have caused those tremendous reductions, we 
know that the recent enforcement initiative of NSR is not one 
of those factors. We still face many challenges. One of them 
that has been at issue today, mobile sources, still a 
challenge. EPA says the personal automobile is the greatest 
single polluter. Some have mentioned MTBE. That was part, as 
you know, of a broader program, the reformulated gasoline 
program, which has produced marvelous results. Although there 
are enforcement implications to the reformulated gasoline 
program, it succeeds largely absent from traditional 
enforcement mechanisms, of the kind of bean-counting that is 
discussed in these charts.
    In many respects, we are the victim of our own success, 
because frankly even as program offices have got the message 
that there have been substantial gains and new priorities need 
to be established, somehow enforcement officers seem to march 
to their own metric of counting numbers of inspections, 
counting out civil fines as if that were the only way to reduce 
pollution. I know it is not the only way and Vice President Al 
Gore stated it was not the only way in his reinventing 
government report. He said, ``We need to reach out to all 
parties.'' He said, ``Programs can no longer succeed as an 
adversarial process with parties seated at separate tables.'' 
In the finest tradition of that reform, he introduced Project 
XL and the Common Sense Initiative under Administrator Browner. 
In both of those cases enforcement personnel and their legal 
counsel raised questions. In that same tradition, President 
Bush has now introduced the Clear Skies Initiative.
    Talk about this partisanship stuff, I say this as a 
Democrat--I mean, some of you I know crossover vote on this 
issue. I am a Democrat and so are the International Brotherhood 
of Boilermakers who join us in the bottom part of our 
statement.
    So how do we fix the environmental enforcement effort? 
Legal scholars reflect there are essentially three ways. We 
have to have a system that has more clarity, more 
predictability and seeks environmental improvement over mere 
bean-counting. My argument would be that the current New Source 
Review enforcement initiative does not succeed on any of those 
three standards. The way it is interpreted now, by reducing 
routine maintenance, it actually decreases energy security, 
most terribly increases the environmental consequences that we 
are trying to protect against. In fact, ``no greater source on 
the New Source Review program than Attorney General Blumenthal 
from Connecticut, who has joined with Mr. Schaeffer or some of 
Mr. Schaeffer's former colleagues in these enforcement 
initiatives.'' He wrote, ``Decimating energy efficiency is a 
disastrous disservice to consumers and environmental interests. 
It means higher energy prices, lower energy supplies, more 
greenhouse gases, acid rain and other sources of pollution.''
    He said that in suing the Bush administration on efficiency 
standards. What I would suggest to you is if energy efficiency 
makes sense for air conditioners, it also makes sense for major 
industrial and utility sources of electricity. Any 
interpretation of the enforcement program which interferes with 
the routine maintenance of these facilities does so at great 
damage and great peril to environmental protection in the 
United States and to workplace safety, as major labor 
organizations have indicated.
    As one State regulator put it, ``The true measure of 
successful enforcement is in quantifiable improvements in our 
environment. Improved natural resources, and not fines, must be 
the primary objective of any effective environmental policy.'' 
She concluded, ``The traditional environmental enforcement can 
simply encourage litigation and slow environmental progress. 
Now is the time to think outside the box on NSR and on other 
trends with respect to environmental enforcement.''
    Thank you.
    Senator Boxer. Thank you very much, Mr. Segal. We will give 
people a chance to comment.
    I am going to take 7 minutes, then I am going to give 
Senator Corzine 7. Whoever shows up will get seven until we are 
done with our questions. I want to thank the panel.
    It is hard to know exactly where to start, but I just want 
to say since, Mr. Segal, you talked about Al Gore and you said, 
when you read it back, you will see your statement, which I 
will send to Al Gore to have him respond to it. You basically 
said that President Bush is essentially picking up where Al 
Gore left off with this comment. I think to say that President 
Bush and Al Gore are similar on the environment is wrong. If 
there is anyplace that we could see differences here, it is 
that. Al Gore would never been touting a budget for his EPA 
that said we are going to have fewer inspections, fewer 
investigations, fewer voluntary disclosures and cut in half the 
amount of pollution reduction in light of what Dr. Johnson has 
told us. So I just want to say, you have a right to your 
opinion and I am going to ask Al Gore if he agrees with this.
    I also want to make it clear that the Republicans on the 
committee asked that you be--you see, we are nonpartisan. You 
are a Democrat, but they asked that you come and speak today, 
and I want to clarify that my understanding is that you are 
currently working in the private sector to represent clients 
who are trying to get changes in the Clean Air Act, and if I 
understand it, also representing companies or you have in the 
past that have been connected with the MTBE problems. Is that 
correct?
    Mr. Segal. That is correct.
    Senator Boxer. OK. I just want to make sure that people 
listening understand this.
    Dr. Johnson, I am just taken by your testimony. You have 
tremendous credibility in my eyes, given all your work in 
public health. If you stop a woman randomly on the street and 
say, ``What is the biggest threat to your health?'' The woman, 
in my experience, is probably going to say breast cancer. In 
fact, it is heart disease that is the largest killer of women. 
It is huge. I teamed up with Congresswoman Maxine Waters a few 
years back to get more focus on heart disease and women. I want 
to go back to your testimony. What you said about cancer and 
the environment was that you think more study is needed, but 
there is a cause for concern. Is that because it takes a long 
time to really understand? Is that a correct summary of what 
you said on the cancer question?
    Dr. Johnson. Pretty much. What I said in my written 
testimony about cancer rates in communities around hazardous 
waste sites and Superfund sites in particular was that there 
was, in my opinion, no consistent pattern of excess cancers. I 
also said in the written testimony this may be because cancer 
is a disease of long latency, 20 to 40 years depending upon the 
kind of cancer.
    I further said, though, that the work from ATSDR that has 
looked at the chemicals, the toxicants that actually have 
gotten into communities, where people came into contact with 
them, were some 30 chemicals that we see over and over and 
over, most often released. Eighteen of those are carcinogens or 
thought to be. I think that gives us really great concern as to 
whether cancer patterns may develop in future years.
    Senator Boxer. Yes. So I wanted to clarify that. So your 
concern is that the pollutants are cancer causing, but we do 
not have enough studies or time behind us yet to know whether 
in fact there will be increased cancer rates due to this 
hazardous material in the environment.
    Dr. Johnson. That is correct.
    Senator Boxer. Now, on heart disease, I want to just prod 
you on this. Scientific evidence is emerging that air 
pollutants may exert an even greater public health burden as a 
contributor to heart disease. Particularly alarming is the 
reported association between very small particles in the air 
and their contribution to sudden heart failure. I want to 
explore that with you because the whole argument over this 
pollution reduction is not about some abstract theory or 
political argument, but it seems to me to be very clear that 
there is this connection. So could you speak to me without 
notes, just talk to me about the quality of the air and what 
happens in terms of the strain on a person's heart?
    Dr. Johnson. These findings are really rather recent and 
most come from researchers who are either at the Harvard School 
of Public Health or have some association with that excellent 
institution. This kind of study that has begun looking beyond 
the matter of cancer, looking at other health impacts, in this 
case cardiovascular disease, are relatively new and I think 
extraordinarily important.
    What a number of studies have done, and this is roughly 6 
to 10, and they have been reasonably consistent in their 
findings--Italy, Philadelphia, other areas of the country.
    These studies basically look at causes of death and also 
look at measurements of pollution. Some of those measurements 
obviously include fine particulate matter. They look through 
rather sophisticated computer models.
    Senator Boxer. Fine particulate matter are those very tiny 
particles----
    Dr. Johnson. Ten micrometers, 2.5 micrometers. So it is 
PM2.5, PM10.
    But looking at these environmental measurements over 
periods of time--quite a number of years, 10-12 years. What 
they find is when you look at the causes of death, they are 
elevated when these pollution levels are elevated. There have 
been some studies that have looked at possible causes, because 
when you think about it, these are fine, very small particles. 
They are basically very small particles of soot that have been 
inhaled. How that might relate to heart failures, myocardial 
infarctions, is really quite challenging in trying to 
understand that. Some studies have been done looking at the 
effect of these particles on the ability to control heart rate, 
and in particular looking at the variability in heart rate in 
persons who have been exposed to various levels of fine 
particles. What they find is that the variability decreases.
    This is important because it may have implications for the 
particles somehow affecting how the vagus nerve regulates the 
heartbeat. Now, the vagus nerve is there as part of the 
autonomic nervous system to control heart rate. So when we get 
excited, like testifying, our heart rate goes up a little bit 
and that is because of actions primarily from the vagus nerve 
on heart tissue.
    Now, if we have less control because of pollution to vary 
our heart rate, then this makes us, it is argued, somewhat more 
susceptible to heart disease, heart attacks. There are some 
other studies that have looked at similar kinds of effects on 
heart regulation and so forth. It is a new body of science. It 
seems internally consistent to me, looking across roughly 8 to 
10 of these studies. It is, I think, of great importance 
because if pollution levels that we thought were safe in fact 
are contributing to other kinds of mortality, premature deaths, 
that is serious business, Senator.
    Senator Boxer. Yes. Does this alarm you--and then I am 
going to turn it over to Senator Corzine--the fact that we got 
this from EPA's own documents that they are cutting back on the 
amount of pollution reduction, given what you now know about 
this emerging science?
    Dr. Johnson. As a retired public health officer who spent a 
career in dealing with environmental pollution, both in the 
workplace and in communities, yes, this bothers me a great 
deal. It bothers me that States have fewer resources to do 
things of an enforcement nature, to do other things that will 
help us reduce what I call the pollution load that we bear as 
an American public. So yes, this does concern me.
    Senator Boxer. I want to thank you. I think this message 
has to get out, Senator Corzine. You know, it is very hard to 
get any message out in this particular time-frame that we are 
in. It is understandable. We nurture our families, we love our 
children, and I will get in the next round the impact on 
children is enormous. We know that. This has been a crusade of 
mine for a long time. We have this Office of Children at the 
EPA which was set up under Bill Clinton. I was happy to see 
that the Administrator has kept it, but if we cannot enforce 
these laws, we are going to have suffering.
    So I hope that the word will go out from this hearing that 
this is an attack on the American people, when you cut back on 
what you want to--the dirty particles in the air, and you are 
cutting that back, and they are having a harder time breathing, 
and the kids having asthma and all the other problems, and we 
do not know about the hazardous sites and cancer yet--that this 
is an attack, stealth attack because it is not doing what Mr. 
Segal is doing up front--I want to change the law. That is up 
front. I can handle that. Let's have that fight. I will go to 
the mat on it. I will take whatever happens.
    But when you do it in a stealth way and you have to pull 
apart a budget document, thousands of pages to get this, plus 
you never saw this one on the number of people they are cutting 
back on, that was something they got from internal documents--
my good staff. This is stealth attack on the American people's 
health. I hope word will go out that that is what I think is 
happening, and I am not going to let it to unnoticed.
    Senator Corzine.
    Senator Corzine. Thank you, Madam Chairman.
    Let me ask Mr. Segal, do you accept that the pollution 
reduction that is shown on this chart and the EPA numbers has 
some correlation with the number of inspections, 
investigations, and other issues? Or is it all bean-counting?
    Mr. Segal. Well, I will tell you, I have been puzzling over 
that chart since it got up there. Now that I hear the Chair say 
that it was sort of achieved by looking through thousands of 
pages and generating it, because I still do not get it. I 
looked at the same EPA budget documents, although I do not hold 
myself out as an expert on the EPA budget, that is for sure. 
What they showed me is in the enforcement area, one, two, 
three, four, five, six, seven, eight, nine of the requested 
areas are actually having budget increases from fiscal year 
2002 to fiscal year 2003. They also demonstrated to me that 
grants to States have held steady and actually increased in one 
category.
    Now, we can argue about it back and forth, but that is one 
thing that became apparent to me.
    Senator Boxer. Let me, Mr. Segal, if I might ask unanimous 
consent to place into the record the actual words that make 
this chart valid comes from EPA. They talk about the millions 
of pounds of pollutants' reduction. So we will share it with 
you. It is page 17.
    [The referenced document follows:]


    
    
    
    Mr. Segal. I am referring to this chart at page 95 of goal 
nine, which is the discussion of the EPA's enforcement budget.
    But as I say, I do not hold myself out as an expert on the 
EPA enforcement budget and it could well be. I will say this--
--
    Senator Boxer. Well, sir, if I might----
    Mr. Segal. Please.
    Senator Boxer [continuing]. Yes, I have the documents, so I 
would hope that we would not debate whether this is what is in 
the document. I am happy to make it--I will send it over to 
you, and put it in the record.
    Mr. Segal. Senator Boxer, in fairness, and I think Mr. 
Schaeffer would agree, in all 50 States there have been cuts in 
money put toward environmental protection. I think it is 
unfortunate. You would certainly agree with that. So what I am 
saying is I do not think it is a cabal or a stealth attack as 
you would describe it, simply limited to the EPA. It is 
occurring in all 50 States and it has a lot to do with the fact 
that the government in general has far less resources. That is 
just a fact. We are in a deficit situation. I am not saying 
maybe we should not spend more money here and spend less in 
other areas, but I am just saying I do not think you can fairly 
say that this is just a stealth attack on the EPA.
    Senator Boxer. Well, then I would ask why we had to dig in 
the internal documents. This was nowhere to be found; was not 
even released to the committee, that shows these cuts. It is 
all about priorities and what is important to the American 
people.
    Mr. Segal. I do not know. I have never seen that. As I 
said, I did read the----
    Senator Boxer. Of course, you did not, because it was not 
made public until we got it.
    Mr. Segal. Right. I did read this GAO report which shows 
that the number of SES cuts demographically begin to get less 
and less and less as we get to 2006, 2007, and 2008.
    Senator Boxer. I do not know what you are talking about, 
but that's fine.
    Mr. Segal. Well, I will be glad to submit this for the 
record if you would like.
    Senator Boxer. This is what they want to do.
    Mr. Segal. OK.
    Senator Boxer. This is what they are asking for.
    Mr. Segal. But let me answer Senator Corzine's question, 
which is, do I believe there is a functional relationship 
between the enforcement effort reduction and the levels of 
diminished environmental protection. Here, I want to focus like 
a laser beam on the NSR enforcement initiative. It is one of 
the highest profile enforcement initiatives. It is one of the 
major items Mr. Schaeffer complained of in his resignation 
letter. Here I would say that if we reinterpret the rules of 
NSR as we did in 1999, and we interfere with routine 
maintenance activities, then we are doing so at the peril to 
environmental protection.
    Dr. Johnson has described to you the impacts of air 
quality. For me, the interesting question is, how do we best 
address that? If we interfere with routine maintenance and we 
decrease energy efficiency at these facilities, we will end up 
with declines in air quality. I do not think that is what 
anybody wants.
    Senator Corzine. Mr. Schaeffer, could you respond?
    Mr. Schaeffer. Thank you so much, Senator Corzine. I am 
dying to answer Mr. Segal on some of these issues.
    On this kind of sound bite, which is a sound bite now, that 
EPA has reinterpreted the rules to the enforcement actions. I 
think Mr. Segal knows that is just what the Justice Department 
looked at. That is what the industry asked the Justice 
Department to look at. I think his clients were hoping that Mr. 
Ashcroft would agree with them, and say we had in fact 
illegally interpreted the rules. He did not. That report was 
out in January. To the Justice Department's credit, it said the 
NSR cases are based on an interpretation of law that is 
reasonable and that EPA has been consistent. That is on the 
record. That is in January. That is this Administration's 
Justice Department. That question I think has been asked and 
answered.
    I also must respond to this notion that NSR enforcement has 
done nothing for the environment, which I heard Mr. Segal say. 
I am going to read you some numbers: Tampa Electric Company, 
settlement now about 2 years ago, 190,000 tons of nitrogen 
oxide and sulfur dioxide taken out of the air every year. You 
have heard about fine particulate matter, the scientists say 
that is driven primarily by sulfur dioxide. We are talking 
about premature deaths. This is a very important issue--190,000 
tons from Tampa Electric.
    Senator Corzine, you already mentioned the PSE&G 
settlement. That is over 50,000 tons. We estimate that is one-
third of the SO2, the sulfur dioxide emissions in 
your State taken out of the air in the PSE&G settlement. To 
their credit, they settled with us.
    Refineries--150,000 tons of nitrogen oxide and sulfur 
dioxide taken out of the air from our settlements with refiners 
covering one-third of U.S. refining capacity. Cinergy and 
Vepco, if the Administration will get the agreements signed 
that these companies already agreed to, 750,000 tons of sulfur 
dioxide and nitrogen oxide.
    What is wrong with that? That is not bean-counting. We are 
talking about emission reductions and we are talking about 
human health.
    Senator Corzine. Mr. Segal, I think your point was that 
routine maintenance, changing pipes, has ended up getting tied 
up in New Source Review. But for the life of me, I do not know 
how that in any way obviates the importance of the kinds of 
dramatic shifts that have come from the implementation of these 
New Source Review standards.
    Mr. Segal. Senator, I will keep it real short on this one. 
In many respects, we are like two ships passing in the night 
here. My clients do not advocate a repeal of the New Source 
Review program. To the extent that companies have violated the 
law, they ought to be held to task under NSR. Our beef is a lot 
more narrow than that. The question is, should the NSR program 
be used in cases where it is inappropriate, in an effort to 
retire, essentially to retire older coal-fired generation 
capacity? That is using the square peg in the round hole. That 
reduces environmental protection, reduces workplace safety, and 
frankly reduces the energy security that Senator Inhofe was 
talking about at the outset.
    So my beef is not--I never said there should not be another 
settlement discussion. That is not our beef. But to apply the 
full weight and authority of the NSR program for a pipe 
replacement or an upgrade in a turbine blade is ridiculous and 
is contrary to energy efficiency.
    Senator Corzine. Did you happen to read that Wall Street 
Journal article that I cited where there were only about 63 
percent of the people conforming with laws?
    Mr. Segal. I did.
    Senator Corzine. How are we going to get at legitimate 
enforcement if we are pulling away--and these were obligations 
that were intended for 1997--if we are going to have the kinds 
of reductions in personnel, and then I think the real 
implication is the kinds of costs in public health that flows 
from this? I find it, if you had 63 percent hit ratio on people 
conforming to the law on embezzlement or reporting adequate 
capital adequacy at banks, you would have a failed financial 
system--something that I know a little bit about. I just do not 
understand these kinds of statistics and I do not understand it 
in the context of the New Source Review either.
    Mr. Segal. The only thing I would say is, to put this in 
perspective, what this report says is that 63 percent of the 
major sources had obtained permits, and it attributes the cause 
of that to be an excess--sort of a bureaucratic slow-down with 
respect to permit granting. The absolutely dead wrong thing to 
do to prompt more permit granting is to precipitate an endless 
cycle of litigation. In my testimony, ``State air authorities 
as saying that is the dead wrong way. That is the way that 
slows environmental progress.''
    So I guess I would say to Mr. Schaeffer or others that if 
we misuse, in my judgment, the NSR program, that will not speed 
up this permitting question. It will only make matters worse. 
So I understand these statistics. I have not peer-reviewed this 
report or anything like that. All I have seen is the Wall 
Street Journal article. But in my judgment, an endless cycle of 
litigation is not the cure for the problem that is discussed in 
this article.
    Senator Corzine. Mr. Schaeffer, any comment?
    Mr. Schaeffer. On the issue of the narrow change and the 
routine maintenance question, I have raised this before, but we 
have a TVA case now going to the 11th Circuit. The trial 
transcript is well worth reading. I can share a copy with Mr. 
Segal. I am guessing he already has it.
    We asked the TVA's own witnesses, and these were hostile 
witnesses, Were these routine maintenance activities or were 
these big projects? We put the big projects that we had 
identified as violating New Source Review because they 
increased emissions up on the board. That witness, a 12-year 
employee at TVA, said unequivocally, those are routine 
maintenance. I am sorry. Let me correct that. Those are not 
routine maintenance. He said, ``No, sir, those are not routine 
maintenance.''
    Now, his lawyer called him back on the stand and 
essentially said, ``Do you want to think about that and try 
that again?'' The answer came back the same--no, can't go with 
you; these are not routine maintenance; these are big projects.
    So our position is, the industry knew. The industry knew 
these were likely to trigger New Source Review requirements. 
They took a chance. They took a risk. I am not saying these 
were criminal. They have got their legal arguments together. We 
have shed some light on those projects now. We would like Mr. 
Segal to make his very eloquent arguments in court and not in 
the political arena by trying to get the law changed; not by 
doing some narrow thing to routine maintenance, by essentially 
turning it into a loophole that swallows the whole Clean Air 
Act.
    Senator Boxer. We have to vote and we are going to come 
back. Can the witnesses stay put? I just wanted to say, Mr. 
Segal, when you opened up in your opening statement, you said 
the NSR has not done any good. I wrote it down. Now you seem to 
be saying, ``I am not saying it did not do any good.'' So when 
we get back, I want to probe that with you a little bit because 
it sounds like you backed away.
    Mr. Schaeffer, that was an interesting story that you told 
about that witness. I am married to a lawyer. My dad was a 
lawyer. My son is a lawyer. They always tell me, do not ask a 
question you do not know the answer to. It sounded like that 
lawyer did not get the answer he wanted. This fellow told the 
truth twice, that they were using this as an excuse. I will 
tell you something, you want to look at an interesting 
situation in California. The energy generators were pulling 
plants off-line so they could say that they had to maintain 
them, when in fact they were holding back electricity. So there 
is a lot of stuff going out that does not--it is not all that 
it seems.
    When we come back, Mr. Segal, I am going to talk to you 
about your openings statement. We can read back what you said, 
and now you are backing up, saying, I am not saying it does not 
do any good. So which is it? I want to get to that.
    But I want you to know the whole issue is here not whether 
New Source Review does any good, but it gets to the enforcement 
question in general, which is what they are doing here to the 
staffing.
    Thank you. We will be back shortly. We stand in recess.
    [Recess.]
    Senator Boxer. We are going to reconvene. We are not going 
to be that much longer, as promised, but I want to say to Mr. 
Segal, your testimony confused me because your statement at the 
opening was that we have made a lot of progress on the 
environment--by the way, you listed enforcement, so I am sure 
you should be as upset as I am at this cut in the personnel. 
Then you said, but NSR has not done any good. Then I am going 
to ask Mr. Schaeffer to respond to whether NSR has done any 
good.
    Mr. Segal. What I said, and if I did not say it this way, 
what I meant was that the 1999 NSR enforcement initiative 
cannot be fairly stated to have caused the 20 years that 
preceded it of declines in air emissions; that is a more 
complicated picture than that. It involves efficiency gains by 
industry. It involves the progress of new technology. It 
involves some fuel-switching. It involves other substantive 
provisions of the Clean Air Act.
    But remember, the very interpretation of NSR that Mr. 
Schaeffer rejects was the interpretation that obtained during 
the majority of the period where air emissions were declining.
    One other thing--Mr. Schaeffer had indicated that he has 
the transcripts of folks from TVA. I want to say, I have a CD-
ROM which shows transcripts of EPA officials also being asked 
questions under oath. One little bit of it, which I will submit 
for the record if you would like that I think you would love, 
is a statement by EPA officials that they changed the 
definition of what triggers NSR literally the night before they 
filed their litigation; that it appeared in no Federal Register 
document, no memorandum, no guidance documents. So to the 
extent we do not like stealth attacks and we want everything to 
be on the record and open, that is not the way to do business 
either.
    Senator Boxer. Mr. Schaeffer, you want to----
    Mr. Schaeffer. I would love to see that. I will give you 
the TVA transcript if you give me----
    Mr. Segal. It will be a trade.
    Mr. Schaeffer. OK.
    Senator Boxer. Let me just say that since we had our 
electricity crisis in California, four power plants that supply 
1,459 megawatts have come on line, and an additional 16 power 
plants have been approved. These plants will provide 9,887 
megawatts. I have a map showing where they went. My 
understanding is because of New Source Review, there is no 
adverse impact on the environment, and I think that is very 
significant.
    Dr. Johnson, because I feel that what happens in a lot of 
these hearings, things get very technical. We have seen them 
get legalistic, technical. The reason I am here, the reason I 
want to be here, is because I want to protect the health and 
safety of people. I have always viewed this as my No. 1 
priority.
    Now, you cannot do the impossible. We all know that. 
Everything we do, we compromise in some fashion, of course, 
because certain things--you do not have the technology, etc. 
From the time I served on a local air quality board, we put in 
the notion of best available technology. The notion is that you 
use what is available, because if you do that, you are going to 
cut down on the pollution and you are going to have fewer 
casualties out there. Is it going to be perfect? No. Somebody 
who is sensitive is still going to have a problem. But we are 
trying to do the very, very best we can.
    All the talk about costs, I think Senator Corzine made a 
good point. The cost of the health care system, for example, of 
children who are staying home because of asthma and need care 
because of asthma--Blue Cross/Blue Shield in my State sent out 
cassettes to everyone there saying this is the way to use your 
asthma medication in the best way. Asthma is so prevalent, if 
you go to any school, Mr. Segal, in California--I cannot speak 
for other States; I am sure it could be even worse in other 
States--and you ask these children, how many of you either have 
asthma, have someone in the family with asthma, have missed 
school--you will see 40 percent of the classroom kids will 
raise their hands.
    I want to probe Dr. Johnson on this question of children's 
health. When we talk about the most vulnerable populations, I 
think it is a very important point because it used to be that 
when the environmental rules are made, they are made and they 
look at the impact on a healthy, 150-pound man. We have been 
arguing that does not answer the question for someone, a female 
for example, who is littler or a child or an older person who 
is vulnerable or a sick person.
    So I want to talk to you about this issue of children. I do 
not know if it is your expertise, but from your experience and 
your reading of the studies, is it not so that children are far 
more susceptible to these toxins? Explain to us some of the 
things--again, you had it in your opening testimony, but I want 
to stress it for the record, the impact of children that you 
believe there is no question about it; not that you think, but 
what you know so far, Dr. Johnson.
    Dr. Johnson. The simple answer is yes. Children are more 
vulnerable for various physiological as well as behavioral 
reasons. In addition to children, the fetus is also at extra 
risk if maternal--and there is some indication, paternal--
exposures to toxicants have been present. Children are more 
vulnerable because their physiology is different from what an 
adult has. Their breathing rate is faster. Their metabolism is 
different from that of an adult. Their play activities are 
different. I have now proudly six and two-thirds grandchildren. 
I have been through the delightful stage of watching them learn 
to walk, but first they crawl, when they crawl they put their 
hands in their mouths etc. So these kinds of activities of 
children are quite different, obviously, from that of adults.
    Senator Boxer. One question on that--when children breathe 
in the air, don't they breathe in more relative to their size 
than an adult?
    Dr. Johnson. Than adults do--that is correct. So if you 
have some kind of toxic experience that is going to diminish 
children's ability--their lung capacity, their forced vital 
capacity and so forth, how efficiently they breathe--then that 
is a health consequence to that child.
    If, as I said, the mother has been exposed during 
pregnancy, that can have an effect, as I testified, on birth 
defects that are associated I think quite strongly and clearly 
now with certain kinds of toxicants in the environment.
    So children who have birth defects, children born with 
lower birth weights than what would have been normal, represent 
a health consequence, and the importance of the consequence 
varies according to the degree of severity.
    Without getting terribly personal, I am a father of a child 
with a serious birth defect--spina bifida. It is a horribly 
difficult condition for both the child as well as the parent. 
Avoiding birth defects through traditional public health 
mechanisms is a very preferred course to take.
    We have learned the lesson of lead, very low exposures to 
lead in children, from various sources. One of the great public 
health stories is the removal of tetraethyl lead in gasoline in 
this country. Getting lead out of paint used in housing is 
another success story. We have learned through our science. Our 
science has led us to these conditions that need to be improved 
upon. We learned from science what low-level exposures to lead 
were doing to young children, and to consequences of exposure 
prenatally.
    We are learning the same thing about now air pollutants, 
very recent research that I have described, and this is not the 
time for us to start trying new ways to enforce our laws, to do 
other things that will help us reduce the pollution load. We 
have to have the science guide us, and that science, it seems 
to me, is rather clear what it is pointing toward--reduce the 
pollution load.
    I am not stupid to the complexity of all this happening. I 
am simply here as a public health officer saying this is what 
the research is showing. We need to factor this into how we go 
about our business in dealing with pollution and the American 
environment.
    Senator Boxer. So when we cut back on the inspectors--and I 
am going to ask Mr. Schaeffer about that in a minute--and we 
reduce the amount of pollutants we are taking out of the air, 
it is a fact that I could quote you on saying, Dr. Johnson, 
that the children, because of these various vulnerabilities, 
are going to feel it first.
    Dr. Johnson. Yes, I agree with that very much. Pollution 
reduction is in the interest of betterment of children's 
health.
    Senator Boxer. Right.
    Dr. Johnson. Period.
    Senator Boxer. I would also point out for everything, and I 
know Mr. Segal agrees with the lead issue, he was nodding his 
head, everyone of these improvements came with howls and 
screams from industry--every one. There wasn't any. I mean, you 
could look at seat belts; you could go anywhere. It always came 
from the public sector to say, we know people aren't going to 
do it. I understand it. If you are in it for the bottom line, 
you are in it for the bottom line. That is our system. You are 
going to be a force for the status quo. In the end, my belief 
is we make--everybody is better off. Business is better off.
    Now, you have the car companies advertising that they have 
these great air bags. Well, that was something they did not 
want to do. We have the best air bags in the business. So in 
the end, we all come together on this, but it is always a 
struggle and a fight.
    Which gets me to you, Mr. Schaeffer. We hear about the 
lead. The lead issue is--it is just devastating to see the 
impact of lead on children's brains and what happens to 
children. Isn't it true that there may be some inspections that 
are not happening on lead because of these cutbacks?
    Mr. Schaeffer. We do have a serious shortfall in that area. 
The requirement I think you are referring to is one that has 
landlords and sellers of residential property notify tenants or 
buyers about the presence of lead hazards. It is a simple 
notification requirement, but it helps mothers with young 
children, fathers with young children know that there is lead 
in the house and that they may need to take care of it.
    We are seeing a fair amount--actually a lot of 
noncompliance, especially in areas of public housing. With the 
resources we had, yes, a couple of years ago I was estimating 
we got to 1 out of maybe 5,000 residential units with an 
inspection every year. That is 1 out of 5,000. If you look at 
the 64 million units that are subject to this law, it is going 
to take us 1,000 years to get through all of them. That housing 
will be long gone before we can finish the inspections. 
Obviously, those are very important requirements to protect 
especially young children, and I am concerned that we are short 
of what we need.
    Senator Boxer. Yes. Is it a fact that when you came on--not 
when you came on--when the Bush administration came on, you 
were ready to hire some new people and you were told not to do 
that?
    Mr. Schaeffer. That is true. That was last spring. We had 
offers to a couple of, actually two attorneys in the Air 
Program, in personnel, and I had to call them and withdraw 
them. We have other examples, in essence, of essentially being 
told you can't fill the vacancies; we are stepping down the 
number of personnel, to try to make the numbers you have 
displayed.
    Senator Boxer. Let me thank everyone here. I just want to 
say I think it has been a good hearing. I have had some very 
encouraging conversations with people on the Budget Committee, 
to give them my sense of it in terms of what we need to do in 
the budget. It is all well and good to say, gee, we are in a 
budget crunch. That is life. I am in a budget crunch in my 
house too, but I decide the things that are most important I am 
going to do. If what is most important to me in this budget is 
protecting the health and safety of the people that I represent 
and the children and the sick people and the old people and the 
weak people, that is what we are here for. So it is a priority.
    We will figure out what to do. We will figure out some 
things that are less important and we will do it. That is why 
we get paid the big bucks, is to figure these things out.
    I want to say to Mr. Segal, I look forward to the day that 
maybe you will switch sides and come on the other side of the 
equation, because you are very good at what you do. I would 
love to see you on what I consider to be the public health 
side, and be great.
    I want to say to Mr. Schaeffer, in a straightforward way, 
that you are a rarity in life today. Now, I do not say this in 
any way to give you a big head, because that is not the point. 
I think the people are few and far between who are willing to 
stand up and say, ``I am walking away; I am not going to hide 
how I feel; and I am going to tell people how I feel.'' No 
matter what pressures may be put upon you, I want you to 
remember this, that you know the truth and the truth can never 
hurt you. You just keep on speaking the truth. I think you are 
a fair person. I think you showed that today. You are going to 
be missed immensely by many people who know you and many who 
never met you. I hope that we will be able to call on you in 
the future because this is not a ball that I am going to drop.
    Anyone who knows me knows that I am tenacious on the point. 
I may not win every time, but I am tenacious. I have a feeling 
that the people in the country want us to protect their health 
and the health of their children and their grandchildren. This 
is not about numbers and percentages. Let's look at the other 
chart. Taking the tons of pollutants out of the air--this is 
not just a intellectual argument. It means that real people who 
we know are going to have real problems. If I can have anything 
to do, a number of us, we are going to change this. We are 
going to say no to this. If the President wants to veto what we 
are doing, fine. I will take that to the American people any 
day of the week. I feel it is something that we must debate.
    Dr. Johnson, thank you for what you are doing. You have 
stayed, really, in the public arena in many ways working for 
the public good. I do not know what I would do if I did not 
have people like you to call on because there are a lot of 
folks who do not like what I do. They let me know every day of 
the week, and they let me know every time I run for office. 
What I believe is that you tell the folks what is happening, 
they will send you back.
    Now, I cannot do that alone, because I am not a doctor and 
I do not know all those studies. But the fact that you brought 
those studies to our attention is very important, and I hope 
again that you will be willing to come back when we get into 
another discussion like this.
    So I appreciate your all being here. I know it was not easy 
for Mr. Segal, but hey, he knew what to expect. Senator Inhofe 
had a little bit of a sore throat or he would have stayed and 
defended you, I am sure. But I thank everyone for being here. 
We are going to keep talking about this. This is going to be a 
budget fight, and you have added immeasurably to our case. 
Thank you.
    The committee stands adjourned.
    [Whereupon at 11:50 a.m., the subcommittee was adjourned, 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
    Statement of Eric Schaeffer, Consultant, Rockefeller Family Fund
    Thank you, Madame Chairman and members of the subcommittee, for 
inviting me to testify at today's hearing on EPA's enforcement program. 
I am presently a consultant to the Rockefeller Family Fund, but for the 
past 5 years was Director of the Office of Regulatory Enforcement, 
managing the civil enforcement program for Federal air, water, and 
hazardous waste laws, and other environmental statutes. As you might 
expect, I have some opinions on the value of Federal enforcement of 
these laws, but will make three points in my testimony that may help 
you to draw your own conclusions:

          The budget for Federal environmental enforcement 
        program is being cut, and we are losing expertise as a result;
          The budget cuts do have real impacts on our ability 
        to protect the public from violation of the laws enacted by 
        Congress;
          EPA and States should not be pitted against each 
        other in a battle for scare resources, when both levels of 
        government have an essential role to play in protecting the 
        environment.

    First, the civil enforcement budget for all programs except 
Superfund has been cut sharply between fiscal year 2001 and the 2003 
budget proposal. The number of full time employees for inspections and 
case development has declined from 1,465 in fiscal year 2001, to 
1,343.5 in fiscal year 2002, to 1,266.6 in the fiscal year 2003 
proposal, for a 14 percent decline in 2 years. Contract resources used 
for field sampling, inspections in key programs like fuel standards, 
and expert witnesses has dropped even faster, from 12.4 million in 2001 
to 10.1 million in the 2003 proposal, over a 20 percent decline. These 
projections can be easily verified by referring to the Agency's own 
operating plan, which establishes the spending ceiling for all EPA 
programs. These cutbacks accelerate a trend that began in the late 
nineties, when Congress disallowed inflation adjustments to the 
enforcement budget for several years in a row.
    Congress appeared to reject this trend in the fiscal year 2002 
Appropriations Act, when it directed EPA to, ``restore Federal 
enforcement positions in accordance with the fiscal year 2001 Operating 
Plan.'' That did not happen. Instead, the FTE's for inspections and 
civil enforcement for programs other than Superfund were cut by nearly 
130 positions below last year's level.
    These cuts do not come from shedding ``surplus'' vacancies the 
Agency was somehow unable to use, as some have suggested. They reflect 
a planned reduction in hiring ceilings and contract dollars that is 
being phased in over a 2-year period. While no staff have been laid 
off, EPA enforcement has been unable to fill vacancies for those who 
have left voluntarily, and likely will have to shift some staff to non-
enforcement functions to manage the reductions in the fiscal year 2003 
budget if it is approved. It is the Administration's right to propose 
cuts in the Federal enforcement budget, but those decisions ought to be 
in plain view.
    Next, the consequences of reducing Federal enforcement ought to be 
made clear. Nearly 2 years ago, I wrote a memorandum to the Assistant 
Administrator detailing the effects of restrictions that Congress 
placed on our budget in fiscal year 2000. These effects include:

          Reducing inspections of fuel to see if they meet 
        Clean Air Act standards;
          Declining to followup on tips about cheating on 
        engine air emission standards;
          Reducing inspections and enforcement of new Clean Air 
        Act standards for hazardous air pollutants;
          Conducting only a nominal review of new Title V Clean 
        Air Act permits;
          Abandoning efforts--almost entirely in some regions--
        to enforce the Toxic Substances Control Act, and the school 
        asbestos program;
          Reducing followup inspections in a county with 
        serious air quality problems, and one where we received serious 
        complaints from local residents;
          Providing only a limited response to desperate 
        requests for help from EPA Region 9 on the MTBE investigation 
        in Santa Monica, California, and the investigation of an 
        asbestos quarry in New Jersey by Region 2;
          Abandoning a national effort to work with States on 
        the lack of financial assurance capacity for treatment, storage 
        and disposal sites, such as that which led to the recent 
        bankruptcy of Safety-Kleen;
          Inspecting only about one out of every 50,000 housing 
        units subject to Federal laws requiring that tenants and 
        homebuyers be notified of lead hazards. With 64 million housing 
        units to go, we are going to be at it for hundreds of years at 
        the current rate;
          Turning back requests for inspections of sewage 
        sludge disposal practices, despite a recent report from EPA's 
        Inspector General that is cause for concern.

    The memo listed specific cases affected by these budget cuts, and 
it was based on extensive consultation with my program managers or 
staff. It might be useful to ask the U.S. General Accounting Office to 
update that review. In fact, last year, the GAO recommended that EPA 
not cut the enforcement budget without ``more complete and reliable 
work force-planning information than is currently available on the 
enforcement workload and the work force capabilities of EPA's 10 
regional offices.'' No such review has been conducted to justify the 
latest budget proposal.
    EPA has taken a number of steps to try to get more value out of the 
diminished resources for Federal enforcement. These include a policy 
that encourages the voluntary disclosure and correction of violations, 
which has won praise from the Washington Legal Foundation and helped 
thousands of facilities returning to compliance without litigation. 
Almost all cases are settled out of court, with penalties only a 
fraction of the amounts we are authorized by Congress to demand. The 
Agency has focused its scarce resources, appropriately in my view, on 
several key areas where violations result in the most environmental 
damage, and tried to make its national experts more geographically 
mobile to work on the most important cases. It has pursued global 
settlements that cover many facilities, and which offer economies of 
scale to both the government and companies that enter into such 
settlements. No doubt there is much room for improvement, but there is 
a limit to how far improved efficiency can compensate for budget cuts 
in a program that is already stretched so thin.
    I want to turn next to the argument that the States will pick up 
any slack left by cutting the Federal enforcement program. You will 
have to draw your own conclusions, but I would ask that you consider 
the following:

          Many programs are still managed exclusively by the 
        Federal Government. These include fuel standard and vehicle 
        emission controls, wetlands protection in 48 States, pesticide 
        registration requirements, right-to-know programs, the Toxic 
        Substances Control Act, the Clean Water Act in six States--the 
        list goes on. The Federal Government still enforces these 
        laws--the State lack the legal authority to assume this 
        responsibility.
          EPA and States are gradually working toward a 
        practical division of labor. EPA, for example, has a growing 
        docket of large cases that focus on multi-state corporations, 
        or trans-boundary pollutants. These cases can be more 
        efficiently handled by the Federal Government, although many 
        States join these suits as co-plaintiffs. For example, last 
        year we successfully reached settlement with companies 
        representing almost a third of U.S. refining capacity, that 
        will reduce nitrogen oxide and sulfur dioxide pollution by over 
        150,000 tons per year.
          Finally, it has to be said that some States still 
        lack the capacity, sometimes through no fault of their own, to 
        enforce certain requirements. EPA has had to step in behind 
        States that face sudden shortfalls in funding, or a tough 
        polluter that has tried to use its political influence to avoid 
        complying with the law. A recent letter from the Environmental 
        Council of States to Senator Jeffords notes that State 
        environmental agencies are facing cuts of 6 percent or more 
        this year. The same letter questions, I think it is fair to 
        say, the wisdom of pitting two underfunded enforcement 
        programs--State and Federal--against each other when both have 
        so much to do.

    You sometimes hear today that we have moved beyond the need for 
enforcement, because companies have internalized environmental values 
and serious violations occur about as often as shark-bite or lightning 
strikes. That is not my experience. Companies are under enormous 
pressure in today's highly competitive global marketplace. They are 
bought and sold quickly, sometimes by companies headquartered in other 
countries, broken into component parts and reassembled, and expected to 
turn a profit in short timeframes. These companies are ultimately run 
by imperfect human beings, not abstract ``management systems,'' and the 
temptations to cut environmental corners in the face of such pressure 
should not be surprising.
    While EPA has encouraged voluntary auditing as a way to help check 
these impulses, the Enron debacle illustrates the limits of self-
policing. Federal enforcement can help to keep the marketplace honest, 
and I think the American public and responsible businesses 
instinctively understand that.
    In the end, I think the question is not whether EPA or the States 
will enforce the Clean Air Act, the Clean Water Act, and hazardous 
waste laws; that's a false conflict, as there is more than enough to do 
for all of us. The real issue is whether the laws that protect public 
health and the environment will be enforced at all; whether, in Teddy 
Roosevelt's words, compliance will be demanded as a right, not asked as 
a favor. We can no longer take that question for granted.
    Thank you again for your efforts to examine the Administration's 
environmental enforcement program, and I would be pleased to answer any 
questions you may have.
                               __________
       Statement of Scott H. Segal, Bracewell & Patterson, L.L.P.
    Senator Boxer and members of the subcommittee, thank you for this 
opportunity to testify regarding the current state of EPA enforcement 
programs. My name is Scott Segal, and I am a partner at the law firm of 
Bracewell & Patterson. In that capacity, I have represented clients 
here in Washington on environmental policy matters for 13 years. I have 
worked with a wide variety of Federal agencies, and have become 
familiar with a number of industrial sectors. I have represented 
private corporations, trade associations, and non-profit organizations. 
In addition, I serve on the adjunct faculty of the University of 
Maryland (University College) in the area of Science and Technology 
Management.
    I represent many groups that have taken an active interest in 
environmental enforcement matters. With respect to the current need to 
clarify the New Source Review program, I specifically represent the 
Electric Reliability Coordinating Council, a group of six electric 
utilities. Further, I serve as outside counsel to the Council of 
Industrial Boiler Owners, a trade association whose members represent 
some 20 industrial sectors. While I have learned much from these 
clients, the views I express today are my own.
   environmental indicators show marked improvement: the example of 
                               clean air
    In the United States today, we have much to be proud of when we 
contemplate the success of environmental programs. It has often been 
observed that at the outset of the current Federal environmental 
programs in the early 1970's, our problems were substantial and 
obvious. It stands to reason that at that time, and for a period 
following, our environmental enforcement priorities were also fairly 
obvious. In many ways, as milestones of environmental achievement have 
been reached, our adversarial enforcement model has not caught up.
    It is clear that substantial environmental progress has been made 
since the adoption of major control statutes. Using clean air progress 
as an example, we can see measurable success. An analysis of Federal 
Government data earlier this year demonstrates astounding reductions. 
The analysis tracks air quality gains and energy consumption during the 
30-year period from 1970-1999. It is derived solely from data produced 
by the U.S. Environmental Protection Agency (EPA) and the Energy 
Information Administration (EIA) of the U.S. Department of Energy.
    The nationwide data show that since 1970:
     Carbon monoxide (CO) levels have dropped 28 percent;
     Sulfur dioxide (SO2) levels have decreased 39 
percent;
     Volatile organic compound (VOC) levels have declined 42 
percent;
     Particulate matter (PM10) levels have fallen 75 
percent;
     Airborne lead levels have declined 98 percent; and
    L Overall energy consumption has increased 41 percent--by 
sectors, commercial energy consumption grew by 80 percent, residential 
energy by 34 percent, and industrial energy consumption by 21 
percent.\1\
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    \1\ Foundation for Clean Air Progress, Air Pollution Plummets as 
Energy Use Climbs (release of study results) (January 17, 2002), 
available at: www.cleanairprogress.org /news/energy--01--02.asp. The 
study's state-by-state analysis tracks air quality and energy 
consumption during the 15-year period of 1985 to 1999. The data were 
drawn from the National Emission Trends (NET) data base which is 
available from EPA.
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    Senator Boxer, these gains are evident even in challenging air 
emission situations, such as your own State of California. As Peter 
Venturi, a California State Air Resources Board official stated at a 
recent EPA hearing in Sacramento, ``The system is working,'' noting 
that smog-forming emissions from businesses in the State have declined 
by 50 percent in the past 20 years despite a 40 percent increase in 
population and commensurate industry growth.\2\
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    \2\ Venturi is quoted in the Statement of C. Boyden Gray, Hearings: 
Air Emissions from Power Plants, Senate Committee on Environment and 
Public Works, July 26, 2001.
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    The acid rain reductions, contained in Title IV of the l990 CAAA, 
are of special importance because they in part serve as a model for the 
Administration's recent Clear Skies Initiative and for legislation 
pending before this committee. Title IV has, by all accounts, been 
highly successful. Gregg Easterbrook, a senior editor at the New 
Republic, wrote last summer that the results have been ``spectacular. 
Acid rain levels fell sharply during the 90's, even as coal combustion 
(its main cause) increased.''\3\
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    \3\ Id.
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    Notwithstanding these successes, there remain some difficult 
problems. Ozone levels, while improving, are still in violation of the 
NAAQS in substantial sections of the country. I think it's important to 
say here that while acid rain is primarily, though not exclusively, a 
power plant problem, ozone is primarily a mobile source problem today. 
Cars, trucks and buses account for twice the NOx produced by power 
plants, which in turn have no role in VOCs, the other smog precursor. 
That mobile sources account for the greater portion of pollutants of 
concern to human health is clear. EPA itself has observed that, ``in 
numerous cities across the country, the personal automobile is the 
single greatest polluter, as emissions from millions of vehicles on the 
road add up. Driving a private car is probably a typical citizen's most 
`polluting' daily activity.''\4\
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    \4\ U.S. Environmental Protection Agency, Automobile Emissions: An 
Overview, Factsheet OMS-5 (August 1994). With respect to NOx emissions, 
a comparison of reductions required of mobile sources and electric 
utilities shows that the utilities are pulling their own weight. Mobile 
sources contribute 58 percent of annual NOx emissions, more than double 
the 25 percent generated by electric utilities, and consequently would 
seem to have much more scope for emissions reduction.
---------------------------------------------------------------------------
    Much has been written recently about the effects of small diameter 
particulate matter, or PM. Thanks to a combination of the TSP and 
PM10 NAAQS, the ozone standard and the acid rain program, 
the United States has engineered a massive reduction of 
PM10, which is now largely in attainment (achieving a 15 
percent reduction from 1990 to 1999 and a 80 percent reduction from 
1970). EPA has pending a NAAQS to control PM2.5 which could, 
if implemented, call for further reductions of power plant emissions, 
along with other pollutants. In the meantime, existing EPA control 
programs are producing continuing reductions of what EPA describes as 
the ``gaseous precursors of fine particles (e.g., SO2, NOx 
and VOC), which are all components of the complex mixture of air 
pollution that has most generally been associated with mortality and 
morbidity effects'' (PM2.5 emissions declined 17 percent 
from 1990-1999). In addition, it is far from clear that PM levels 
should be viewed as a traditional enforcement issue; the President's 
own proposal for a Clear Skies Initiative is another, undoubtedly more 
efficient mechanism to incentivize and engineer further reductions in 
PM. And recent data has demonstrated that among the most dangerous 
forms of PM are those arising from automobile exhaust--a source 
controlled by the Federal reformulated gasoline program, a program 
enforced with a minimum of traditional adversarial enforcement actions.
      changing environmental enforcement to reflect new realities
    In some respects, we are a victim of our own success. As 
environmental indicators are trending in a positive fashion, the 
decisions we make as a society become more difficult in the area of 
allocation of resources. Environmental protection remains just as 
important, but the tools we use must become more refined. 
Unfortunately, while many program officers understand the need for 
changing priorities, enforcement officers often view the world in a 
binary fashion with little room for subtlety.
    There seems to be a bipartisan consensus that such an approach 
makes little sense, and can even produce perverse results. Then-Vice 
President Al Gore, in his September 1994 report to President Clinton on 
the progress of governmental reinvention activities, observed that, 
``EPA Administrator Carol M. Browner, for instance, is reaching out to 
all parties with potential roles to play. Environmental protection, she 
says, can no longer succeed as an adversarial process, with the 
polluter on one side of the table and the offended party on the other. 
Now, all parties must sit and work together.''\5\ Two years later, Vice 
President Gore revealed the successes that could be achieved when pilot 
projects were adopted--sometimes over the objections of enforcement 
officers--such as Project XL and the Common Sense Initiative at EPA. He 
stated, ``EPA has found that when they let companies volunteer to cut 
pollution without the government dictating how they had to do it, 
thousands of companies jumped at the chance.''\6\
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    \5\ Vice President Al Gore, Creating A Government That Works Better 
and Costs Less (Chapter III--Creative Approaches to Environmental 
Protection)(September 1994).
    \6\ Vice President Al Gore, ``The Environment'' from 1996 Annual 
Report: The Best Kept Secrets in Government (report to President 
Clinton regarding Reinvention of Government and the National 
Performance Review).
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    What Vice President Gore and Administrator Browner recognized from 
their efforts at governmental reform is what is evident today: as the 
nature of environmental challenges has changed, so too must antiquated 
notions of a purely adversarial approach to enforcement.
    Two thoughtful legal observers have articulated a rubric for 
judging effective environmental enforcement. To be effective, an 
enforcement regime must:

          be clear in what it mandates and prohibits;
          be predictable in how it punishes violations of the 
        regulations, and rely where possible on cooperative, problem-
        solving approaches; and,
          seek environmental improvement, not numerical 
        enforcement targets.\7\
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    \7\ Alexander Volokh and Roger Marzulla, Environmental Enforcement: 
In Search of Both Effectiveness and Fairness, RPPI Policy Study No. 210 
(Aug. 1996) at http://www.rppi.org/environment/ps210.html.

    By the standards of this approach, it would appear that the current 
approach to environmental enforcement is less than optimal. One the 
first measure--clarity--the New Source Review program is an example 
presently of what NOT to do. But it is hardly alone in a lack of 
clarity. In fact, one widely quoted study has it that fewer than one 
third of the responding attorneys felt that it was even possible to 
comply fully with Federal environmental laws given their current lack 
of clarity.\8\ Unfortunately, the mechanism used to address enforcement 
clarity often is part of the problem: when EPA issues enforcement 
guidance documents that have the effect of creating entirely new 
obligations without notice and comment rulemaking, obligations become 
all the more confusing and less respectful of proper process.\9\
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    \8\ Jonathan H. Adler, Anti-Environmental Enforcement (Feb. 1, 
1997), at http://www.cei.org/utils/printer.cfm?AID=1307 (citing a 1993 
survey of 200 corporate general counsels conducted by the National Law 
Journal).
    \9\ The same source continues: ``Federal agencies publish more than 
65,000 pages of rules and interpretive statements in the Federal 
Register each year, and issue countless pages of regulatory guidance. 
Much of this ``guidance'' actually attempts to change the meaning of 
the regulations, or to add new requirements not contained in the 
published rule. These thousands upon thousands of pages of regulations 
and interpretations often are inaccessible to most Americans, creating 
a welter of ``private regulations'' of which citizens are completely 
unaware. These memoranda, letters, and notes, prepared by thousands of 
separate government employees, are sometimes inconsistent with each 
other--as well as with the regulation. Indeed, the more ambiguous the 
regulation, the greater the proliferation of interpretations and 
guidance, leaving the citizen to pick through them to ascertain--at his 
peril--what those regulations require of him. The results, in many 
instances, include ruinous penalties and the shattering of lives of 
ordinary, law-abiding Americans who tried to do the right thing.''
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    The second observation, the need for predictability, is also 
missing in many of today's enforcement activities. Again, the NSR 
program is an excellent example of the problems faced by the regulated 
community. As we further discuss in the White Paper attached to this 
Statement as Appendix One, EPA's NSR rules, which for 30 years have 
been consistently applied only to new greenfield sources or major 
modifications of existing sources, are now being reinterpreted without 
any rulemaking change and applied to routine repair, replacement and 
maintenance activities at all existing sources, causing major 
disruption in routine maintenance schedules, curtailing power output, 
and dismembering whole Titles of the Clean Air Act.
    The rationale for the radical shift in interpretation is in the 
allegation that utilities are by illicit maintenance keeping afloat old 
plants that were ``grandfathered'' from any CAA controls and that are 
now threatening the nation's health. But the 1990 CAA Amendments 
mandated sweeping reductions for all power plants regardless of age 
through the use of highly efficient market incentives. The 1990 Act 
thus established a flexible market-based system that is working very 
efficiently to drive down pollution through 2010 and beyond, but that 
is now being repealed by administrative fiat and replaced by an 
outmoded, inefficient and counterproductive command and control regime.
    And the clear truth is that many of the targets of the current NSR 
enforcement initiative are functionally related to routine maintenance, 
repair and replacement. They cannot usefully be characterized as major 
modifications or boiler or powerplant expansions. Appendix Two delves 
into the exact nature of the activities at issue here.
    The last component of effective enforcement--a desire to embrace 
outcomes over mere numbers of cases--is again often missing in today's 
approach to enforcement. Of course, current enforcement efforts are not 
without their traditional numerical successes. Indeed, EPA released 
data on its enforcement and compliance assurance results earlier this 
year, which included ``record-setting amounts of money violators have 
committed to environmental cleanups and restoration, and for projects 
to protect the environment and human health beyond injunctive relief, 
and to record penalty assessments.''\10\
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    \10\ U.S. EPA, fiscal year 2001 Enforcement and Compliance Results 
(Jan. 31, 2002), available at: http://es.epa.gov/oeca/main/2001eoy/
index.html.
---------------------------------------------------------------------------
    Despite this numerical success, Administrator Whitman has 
recognized that such numbers are not the sole relevant benchmark . 
``With our State and local partners, we set a high priority on areas 
that posed serious threats to health and the environment,'' said EPA 
Administrator Christie Whitman. ``The Administration is determined to 
actively pursue those who fail to comply with the law while working 
closely with the regulated community to find workable and flexible 
solutions.''\11\ Clearly then, there is growing recognition that it is 
important to prioritize enforcement; to target areas of greater 
environmental reduction; and to work cooperatively toward solutions.
---------------------------------------------------------------------------
    \11\ Id.
---------------------------------------------------------------------------
    Perhaps it is Administrator Whitman's experience as a Governor that 
has led her to this conclusion. We should remind ourselves that the 
number of Federal enforcement actions are not the sole indicators of 
success. In fact, 2 years ago, the U.S. Congress commissioned the 
Environmental Commission of the States to examine relevant differences 
and interrelationships between Federal and State enforcement actions. 
ECOS reported that in 1 year alone, States passed over 700 
environmental statutes for which there were no Federal counterparts. 
However, Federal statistics collected by EPA do not count enforcement 
efforts undertaken by the States in reference to these actions.\12\ 
Indeed, of the universe of all enforcement actions undertaken by both 
the States and EPA, States alone conducted about 90 percent.\13\ 
However, the great majority of these actions are undertaken in a spirit 
of cooperation and compliance assurance. ECOS concluded:
---------------------------------------------------------------------------
    \12\ The Environmental Council of the States, State Environmental 
Agency Contributions to Enforcement and Compliance (April 2001), at 9.
    \13\ Id. at 14.
---------------------------------------------------------------------------
    ``Many State environmental leaders do not believe that their 
primary goal is just to conduct enforcement actions. It is more 
important to assure compliance, and more important still to improve 
environmental quality and public health. For this reason, States have 
been leaders in developing `compliance assistance' programs.''\14\
---------------------------------------------------------------------------
    \14\ Id. at 10.
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    But, in any event, it is curious and misplaced criticism to look at 
elements such as numbers of cases and workyears of budget allocation as 
reflective of actual realities. If it is to succeed in moving the 
needle toward additional compliance, enforcement programs must be less 
adversarial and of greater real assistance. As one State regulator put 
it, ``the true measure of successful enforcement is in quantifiable 
improvement in our environment. Improved natural resources, not fines, 
must be the primary objective of any effective environmental policy.'' 
She concluded: ``Allowing States to establish, develop, and implement 
environmental improvement policies is critical to their autonomy and 
the health of the environment. Heavy fines simply encourage litigation 
and slow environmental progress.''\15\
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    \15\ Becky Norton Dunlop, Environmental Enforcement: Supporting 
State Efforts to Encourage Voluntary Compliance at http://www.adti.net/
html--files/reg/dd/dddunlop.htm
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          the price of failure: the case of nsr clarification
    EPA's reinterpretation is not only flawed as a matter of law, but 
it also undermines our energy supply, environmental protection and 
workplace safety. Because NSR is a costly and time-consuming process, 
EPA's current position discourages utilities from undertaking needed 
maintenance projects. This makes plants more reliant on deteriorating 
components, resulting in less efficient, less reliable and higher 
emitting power generation. For example, the efficiency of currently 
available steam boiler equipment deceases over time as plant components 
deteriorate. Boiler tubes, in particular, are subject to very harsh 
temperature, pressure, and chemical conditions, and leaks result. 
Short-term fixes include patching tubes where there are leaks, but 
eventually whole sections begin to wear out and must be replaced if the 
plant is to continue to operate. Yet EPA's reinterpretation of NSR 
could have such a routine and necessary activity declared non-routine.
    There are 300,000 megawatts of coal-fired generating capacity which 
is 55 percent of all electricity generated in the United States. 
Approximately 1,200 coal-fired generating units are in service. These 
generating units involve two distinct sets of operations: (1) a steam 
cycle (e.g., the boiler and related equipment), and (2) the turbine 
cycle (where the electricity is generated). In the past few years, 
there have been some very exciting innovations in the turbine 
technology area. For example, just one type of efficiency improvement 
project, the so-called Dense-Pack which enhances the efficiency of 
turbine blades, can result in a very significant improvement in the 
efficiency with which steam is turned into electricity.
    A more efficient turbine results in more electricity output from 
the same steam input, with no greater fuel use. For example if one 
assumes that most generating units could improve efficiency by between 
2 percent and 4 percent (a very conservative estimate, based upon the 
actual operating experience of several units which have installed the 
Dense-Pack technology), this would mean an additional output of 6,000-
12,000 megawatts of power in the near term, with significant decreases 
in emissions per unit of fuel burned. This increase in available 
installed capacity is the equivalent of building 20-40 new plants of 
300 megawatts each with no new emissions. We should recall that the 
very definition of pollution is inefficiency; getting more electrons 
out of less coal is the best way to prevent pollution.
    Last, we should be clear that many of our colleagues in organized 
labor support the notion that the NSR program should be clarified in 
order to allow for sufficient routine maintenance activities. The 
greater the incentive for maintenance, the safer our work environment 
will be. Attached for the subcommittee's review as Appendix Three is a 
statement offered by the International Brotherhood of Boilermakers at 
EPA's regional conference on NSR held last summer.
                                 ______
                                 
                              APPENDIX ONE
               Electric Reliability Coordinating Council
           White Paper on Clarification of New Source Review
                                Summary
    EPA's NSR (``New Source Review'') rules, which for 30 years have 
been consistently applied only to new greenfield sources or major 
modifications of existing sources, are now being reinterpreted without 
any rulemaking change and applied to routine repair, replacement and 
maintenance activities at all existing sources, causing major 
disruption in routine maintenance schedules, curtailing power output, 
and dismembering whole Titles of the Clean Air Act. The rationale for 
the radical shift in interpretation is in the allegation that utilities 
are by illicit maintenance keeping afloat old plants that were 
``grandfathered'' from any CAA controls and that are now threatening 
the nation's health. But the 1990 CAA Amendments mandated sweeping 
reductions for all power plants regardless of age through the use of 
highly efficient market incentives. The 1990 Act thus established a 
flexible market-based system that is working very efficiently to drive 
down pollution through 2010 and beyond, but that is now being repealed 
by administrative fiat and replaced by an outmoded, inefficient and 
counterproductive command and control regime.
                        i. how did we get here?
    The CAA, which has produced dramatic reductions in air pollution 
over the last three decades despite explosive economic growth, operates 
through two approaches. The first approach develops national health and 
environmental standards for the States to apply to the existing sources 
in their jurisdictions. DOE reports that the utility industry alone has 
spent more than $30 billion to achieve compliance with these health 
standards.
    The second approach applies the best current technology to new 
sources and major modifications of old sources that increase pollution 
levels where inclusion of such technology can be integrated in an 
efficient manner without highly disruptive retrofitting. The purpose is 
to prevent new pollution by new plants, both to preserve air quality in 
areas that attain health standards, and to avoid complicating ongoing 
plans to clean up existing plant and equipment in areas that do not.
    Because of delays and regulatory difficulties primarily associated 
with ozone attainment and a need to address acid rain not previously 
regulated, the Congress enacted the 1990 CAA Amendments (``1990 CAAA'') 
to impose a sweeping array of new pollution reductions on power plants 
(and other pollution sources as well). These new programs included the 
acid rain program of Title IV, which mandates a 50 percent reduction in 
SO2 by 2010, and the interstate transport provisions of Title I, which 
are now being implemented to impose additional NOx controls in 
Midwestern power plants that may themselves be located in attainment 
areas, but that send pollution through tall smoke stacks to the 
neighboring States.
    These new programs adopt a different--and highly successful--
approach that assigns and limits the absolute number of tons a plant 
can emit, leaving to the plant the decision as to how to reduce its 
tons, rather than assign a particular technology to the plant which it 
must build. Because the preexisting NSR program is technology-based, 
rather than ton-based, EPA issued a rulemaking in 1992 to reconcile the 
old with the new, as described more fully below. It is this 1990 CAAA 
and 1992 rulemaking which EPA is now blatantly violating--by, for 
example, forcing utilities to accelerate reductions much faster than 
those mandated by Title IV of the 1990 CAAA.
    As indicated above, NSR was intended primarily to apply to new 
sources and can also apply to existing plants only when a large 
industrial source of air emissions, a refinery or a power plant makes a 
non-routine physical or operational change that results in or causes an 
emissions increase.
    Over the last thirty years, EPA's regulations and practice have 
excluded from NSR all ``routine maintenance, repair and replacement'' 
activities undertaken by power plants and other industries. 
Additionally, EPA surveyed utility maintenance projects, including 
``life extension projects,'' in the early 1990's and concluded that 
those did not trigger NSR. EPA also has published guidance in the 
Federal Register defining what was routine by reference to the standard 
practices of the relevant source category, in this case the utility 
industry. Likewise, EPA's regulations specifically exclude any 
increases in emissions associated with operating a facility more hours, 
unless such an increase is prohibited by a federally enforceable permit 
condition.
    EPA's practices interpreting the NSR rule were explicitly described 
to Congress by then-EPA Administrator Reilly and other Agency officials 
when Congress was considering the Clean Air Act Amendments of 1990. One 
of the reasons Congress adopted the Acid Rain provisions of Title IV to 
reduce SO2 by 50 percent (10 million tons) was because 
utility units typically operate for 65 years or longer without major 
modification and the NSR program would not obtain equivalent 
reductions. To help facilitate cost-effective compliance by the utility 
industry with both the ton-based 1990 CAAA and the pre-existing 
technology-based NSR program, EPA, after an extensive notice and 
comment process in 1992, promulgated a rule which explicitly laid out 
all of the NSR procedures applicable to the utility industry and 
confirmed that ``pollution control'' projects would not trigger NSR.
    In 1996, EPA initiated a rulemaking to revise the 1992 NSR rule, 
but never finished it. Instead, in 1999, EPA commenced a major 
enforcement initiative against virtually every coal-fired utility plant 
in the country for repair and replacement activities undertaken over 
the past 20 years. Under EPA's reinterpretation, virtually every 
maintenance, repair or replacement project undertaken by any utility 
plant could be considered non-routine. Any project that increases 
availability or efficiency or corrects problems causing forced shutdown 
of plants potentially triggers NSR. EPA abandoned its simple test for 
determining when maintenance practices are routine--common industry 
practices--and now applies a multi-factor (more than 20 different 
factors) weighing and balance test that only it can perform with any 
sort of regulatory certainty. Amazingly, even installation of pollution 
control equipment by utilities may now be viewed as an NSR-triggering 
event.
    Whatever policy merits EPA believes justify its new position on NSR 
applicability, EPA's efforts to achieve this through enforcement 
actions against utilities for projects undertaken decades ago is 
inconsistent with current law. If EPA believes this NSR 
reinterpretation is correct, it should only apply it after notice and 
comment rulemaking or ask Congress for new legislation to revise the 
1990 CAAA.
    In justifying its enforcement actions, EPA claims that its sole 
goal is to avoid emission increases by power plants operating more 
hours than in the past. This point is so important that a more detailed 
explanation is in order. Under the Clean Air Act provisions, every 
power plant in the country is allowed to emit a certain quantity of 
various regulated pollutants, of which NOx and SOx are the two key 
ones. Each utility plant has a legally mandated emission rate--a 
maximum amount of pollution that can be emitted per hour, per day, per 
month, or even annually, depending upon air quality and other 
consideration. But, any time a plant slows down because of a 
maintenance problem, it will necessarily be able, once repaired, to 
operate more hours--and emit more--than it did during the problem 
period--even the emissions are well within the limits spelled out in 
the State SIP and the Federal reductions required by Title IV. These 
various limits are spelled out in permits held by utility plants or in 
State implementation plans, and they reflect EPA-prescribed public 
health-driven ambient standards. These limits cannot be breached by 
power plants under any circumstances, and there is no claim that any of 
the plants subject to the EPA enforcement did exceed the permitted 
limit of emissions. However, every unit must be prepared to operate 
more hours within their tonnage limits in order to meet customer 
demand.
    EPA's definition of an emission increase is artificial and 
arbitrary. Power plants operate under extremely harsh conditions; every 
several years, as the plant equipment deteriorates, the plant's 
efficiency, availability and reliability go down. Eventually, the plant 
operator performs a set of routine maintenance procedures to restore 
and maintain the plant's efficiency, availability and reliability. To 
emphasize, throughout all of these changes, the plant never increases 
or exceeds its legally binding and public health-driven emission 
limits. EPA, however, compares a plant's actual emissions at the time 
it was operating in the recent past before a maintenance procedure with 
its future potential emissions following that procedure, assuming that 
the plant will, as a result of the project, operate every hour of every 
day in the year at maximum output. In other words, EPA's methods always 
predicts an emission increase even though none may occur, and even 
though the plant may not under any circumstances exceed the CAAA's 
mandated reductions.
 ii. epa's reinterpretation discourages needed maintenance procedures 
                    and reduces generating capacity
    EPA's reinterpretation is not only flawed as a matter of law, but 
it also undermines our energy supply. Because NSR is a costly and time-
consuming process, EPA's current position discourages utilities from 
undertaking needed maintenance projects. This makes plants more reliant 
on deteriorating components, resulting in less efficient, less reliable 
and higher emitting power generation. For example, the efficiency of 
currently available steam boiler equipment deceases over time as plant 
components deteriorate. Boiler tubes, in particular, are subject to 
very harsh temperature, pressure, and chemical conditions, and leaks 
result. Short-term fixes include patching tubes where there are leaks, 
but eventually whole sections begin to wear out and must be replaced if 
the plant is to continue to operate. Yet EPA's reinterpretation of NSR 
could have such a routine and necessary activity declared non-routine.
    A plant operator typically will accept some level of deterioration 
in efficiency for a short period of time but must eventually undertake 
the repair and maintenance necessary to regain lost efficiency and to 
maintain unit availability. The timing of these projects depends in 
part on the demands being placed on the power plant to operate to meet 
energy supply needs. Unit unavailability can seriously impair a 
utility's ability to meet customer demand and nearly always results in 
running less efficient units. Operating inefficient units increase the 
amount of pollution emitted. Under the EPA Office of Enforcement and 
Compliance Assurance's new interpretation of the NSR rules, it is these 
projects, designed to maintain efficiency and availability, that are no 
longer regarded as ``routine.'' EPA then assumes the unit will operate 
more hours than before the project and further assumes that the 
project, rather than customer demand, weather, or other unit outages, 
causes this increase. Once EPA thus determines that NSR will be 
triggered, the unit cannot even begin to proceed with the project 
without either going through the lengthy NSR permitting process, which 
takes a year or more, or without ``capping'' operations at historical 
levels. Thus, the unit must either wait or derate. Either alternative 
can have significant adverse consequences for the reliability of the 
country's electric supply. Waiting can idle a unit during peak demand 
for 12-24 months, more if intervenors challenge the permitting. 
Derating effectively confiscates capacity, even when the unit is 
permitted to operate at maximum output year-round.
    Over the next 3-5 years, thousands of megawatts of existing 
generating capacity will be lost if companies are not able to undertake 
these routine maintenance and repair projects, or if companies must 
accept caps on utilization to avoid lengthy NSR. In the longer term, 
EPA's new position would involve the loss of an even greater number of 
megawatts. The result of EPA's reinterpretation will be the decrease in 
available installed power plant capacity at a time when we already have 
a supply shortage--something this Nation, and the West in particular, 
can ill afford.
    iii. epa's reinterpretation discourages efficiency improvements
    There are 300,000 megawatts of coal-fired generating capacity which 
is 55 percent of all electricity generated in the United States. 
Approximately 1,200 coal-fired generating units are in service. These 
generating units involve two distinct sets of operations: (1) a steam 
cycle (e.g., the boiler and related equipment), and (2) the turbine 
cycle (where the electricity is generated). In the past few years, 
there have been some very exciting innovations in the turbine 
technology area. For example, just one type of efficiency improvement 
project, the so-called Dense-Pack which enhances the efficiency of 
turbine blades, can result in a very significant improvement in the 
efficiency with which steam is turned into electricity.
    A more efficient turbine results in more electricity output from 
the same steam input, with no greater fuel use. For example if one 
assumes that most generating units could improve efficiency by between 
2 percent and 4 percent (a very conservative estimate, based upon the 
actual operating experience of several units which have installed the 
Dense-Pack technology), this would mean an additional output of 6,000-
12,000 megawatts of power in the near term, with significant decreases 
in emissions per unit of fuel burned. This increase in available 
installed capacity is the equivalent of building 20-40 new plants of 
300 megawatts each with no new emissions.
    As an example, this type of efficiency improvement, if installed by 
the approximately 1,000 utility units (out of some 1,200 existing coal-
fired utility plants) that can be most easily retrofitted with Dense-
Pack technology, would reduce criteria pollutants that NSR was meant to 
address (NOx and SOx) substantially.
    However, under EPA's reinterpretation of its NSR rules, the 
installation of even this type of beneficial technology requires an 
elaborate, expensive and time-consuming permitting process, which 
results in the imposition of additional costly control technology 
requirements on existing plants, and therefore discourages the 
installation of new and more efficient technologies.
                             iv. conclusion
    Overall, the effect of EPA's recent position is to block routine 
maintenance, repair and efficiency improvement projects that could 
immediately expand generating capability without increasing fuel 
burning and will decrease by a significant percentage the total 
available installed capacity through caps on operations. Stated 
differently, EPA's reinterpretation of NSR is tantamount to shutting 
down dozens of utility units every year at a time when electricity 
supply is already so short as to be unreliable in many areas.
                                 ______
                                 
                              APPENDIX TWO
               The True Nature of Repair and Replacement
    This document provides more detail on major repair and replacement 
projects that must be undertaken at utility generating stations, in 
order to keep those facilities operational. The utility industry 
generally plans for a major outage at each generating unit at a regular 
interval, which has changed over time. During the 1970's and earlier, 
annual outages were the norm, and each unit would be removed from 
service for several weeks at a time to undertake a comprehensive boiler 
inspection and repair outage. Currently such outages occur on schedules 
ranging from 18 months to 3 years, and they therefore last longer. 
Turbine overhauls are planned on longer intervals, approximately every 
five to 8 years, and generally last even longer due to the nature of 
the work required. In the years when turbine overhauls are scheduled, 
more extensive boiler work can also be scheduled to occur.
    During each major outage, work will be conducted on one or more of 
the projects discussed below. For each, this document provides examples 
of the types of major repair and replacement projects that are 
conducted in the industry, a discussion of the consequences of not 
undertaking the project, and information on typical project costs. 
There are many smaller repair and replacement projects that take place 
in each of these projects that are not discussed here, given our focus 
on major repair and replacement projects that are common in the utility 
industry. These smaller projects will typically be performed during 
forced outages as time permits, during shorter scheduled outages on 
weekends, or during the planned outages scheduled for the more 
significant projects discussed in this paper. These smaller projects 
add to the overall capital costs incurred for repair and replacement 
projects at an individual unit over time.
                         boiler tube assemblies
a. Project Description
    Boiler tube assemblies include superheaters, reheaters, economizers 
and boiler walls and floors. These tube assemblies may also be known as 
division walls, wing walls, waterwalls or steam generation tubes. 
Boiler walls consist of rows of tubes mounted along (and essentially 
forming) the interior walls of a boiler. Superheaters, economizers and 
reheaters are typically bundles of tubes which hang from the ceiling or 
sides of a furnace into the hot combustion gasses. The heat in the 
furnace is thereby transferred to the water or steam passing within 
each tube.
    Boiler tubes function in extreme conditions. These tubes are not 
exotic alloys and therefore are expected to experience wear and 
periodic failure. Corrosion and erosion, in addition to temperature and 
pressure-related stresses, wear or weaken the tubes. When boiler tubes 
leak, those tubes, and typically surrounding tubes, must be repaired or 
replaced. If deterioration is limited to a few tubes, repairs can be 
effected by cutting out the leaking section of tubes and welding in 
place a new tube section. More extensive deterioration, including 
deterioration anticipated based on the results of nondestructive 
analysis of the boiler walls, requires replacing an entire tube 
assembly. When materials that can better withstand the destructive 
environment of the boiler and can reduce the susceptibility of the 
tubes to wear are available, it is common practice to use those 
materials to the extent it is cost-effective. Similarly, improvements 
in tube arrangement in the boiler are common as the individual air/gas 
flow patterns of a boiler are established. Finally, the headers that 
collect the water or steam and feed it into the tube assemblies and the 
structural components associated with the tube assemblies are also 
subject to deterioration due to the same failure mechanisms.
b. Consequences of Forgoing Project
    Once a tube develops a leak, the unit can only operate for a few 
hours to a couple of days, depending on where the leak is in the boiler 
and whether the leak endangers the integrity of other tubes or 
components. After that short time, the unit must be shut down in order 
to repair or to replace the leaking tubes, because tube repairs must be 
conducted off-line after the boiler has cooled. Replacement of an 
entire tube assembly becomes necessary as anticipated or projected 
failures increase. Forgoing replacement severely jeopardizes the 
reliability of the unit by requiring that it be repeatedly shut down in 
response to tube leaks. Ultimately, tube leaks can require that the 
plant be shut down. Foregoing replacement also jeopardizes the 
integrity of other tubes and components, creating a risk of massive 
boiler failure that would endanger employees and prevent the boiler 
from being operated to supply electricity.
c. Other Information
    Repair of leaking sections and wholesale replacement of tube 
assemblies are common projects. Replacing tube assemblies can cost up 
to $40/kw on a large coal-fired boiler, and even more on a smaller 
boiler. A census of repair and replacement practices at coal-fired 
utility boilers shows that entire tube assemblies have been replaced by 
almost every boiler in the industry, with some replacements occurring 
as early as 5 years after commercial operation.
                              air heaters
a. Project Description
    Electric steam generating plants use air heaters to pre-heat the 
combustion air to improve the combustion process and the overall 
efficiency of the unit. Generally, air heaters receive hot flue gas 
passing through the economizer and cooler combustion air from the 
forced draft fan. Air heaters transfer the heat from the hot flue gas 
to the cooler combustion air. Regenerative air heaters perform this 
heat transfer through the use of air heater tubes or baskets (which are 
comprised of rows of metal plates with corrugations and undulations 
designed to facilitate flow paths and heat transfer).
    Condensation and the presence of ash can corrode, erode or plug air 
heater baskets or tubes. While washing and soot-blowing (see project 
family #10) may address short-term plugging issues, corrosion of the 
metal surfaces and the resulting losses in heat transfer require the 
replacement of air heater baskets or tubes at a frequency ranging from 
5 to 15 years.
    Air heaters also suffer from the erosive effects of ash and other 
materials, especially if gaps in air heater seals are worn or weakened. 
This may lead to the replacement not only of air heater tubes and 
basket layers, but also of structural elements, seals and gaskets. When 
air heater tubes or basket layers and associated equipment are 
replaced, it is standard practice to consider improvements in plate 
configuration, in materials or in the corrugation or undulation of the 
plates, or in the arrangement of tubes to account for the specific 
requirements of a particular boiler.
b. Consequences of Forgoing Project
    If air heater tubes, baskets and other air heater equipment are not 
replaced when they deteriorate, the plant loses efficiency because the 
incoming combustion air is not warmed sufficiently. As the air heater 
becomes further plugged or corroded, the unit is further limited in its 
capability to generate electricity because less air and exhaust gases 
can pass through the air heater. As the efficiency of the unit 
decreases, the amount of emissions per unit of electricity generated 
increases. If most or all of the air heater is plugged, no air can flow 
through, and the unit cannot operate. Ultimately, if not replaced, 
pieces of the air heater that have been eaten away could be sucked into 
the boiler, causing damage and forcing the boiler to shut down.
c. Other Information
    The replacement of air heater basket layers, tubes and the seals 
around the air heater are common projects. Replacing tubes and basket 
layers can cost up to $6/kw on a large coal-fired boiler. As with other 
components, costs in $/kw tend to be higher on smaller boilers. A 
census of repair and replacement practices at coal-fired utility 
boilers shows air heater baskets/tubes have been replaced by over 80 
percent of the units surveyed.
                                  fans
a. Project Description
    A fan consists of a bladed rotor, or impeller and a housing to 
collect and direct air or gas. Many boilers operate with both forced 
and induced draft fans--also known as ``balanced draft.'' These boilers 
use the forced draft fan to push air through the combustion air supply 
system into the furnace. The induced draft fan is on the other end of 
the furnace, and sucks combustion gases through. In this way, the two 
fans maintain the pressure of the boiler in ``balance'' or at 
atmospheric pressure or slightly negative pressure.
    Other boilers were designed to operate at positive pressure, using 
only a forced draft fan and no induced draft fan. However, this design 
forces heat and ash through the joints of the boiler and ducting 
system, resulting in employee health, safety and other concerns 
stemming from the dusty environment. These include increased equipment 
maintenance needs due to the high dust levels. Accordingly, many 
companies with positive pressure boilers have replaced the forced draft 
fan system with a balanced draft fan system to correct these 
maintenance and employee safety problems.
    Another kind of fan necessary to pulverized coal-fired boiler 
operation is a primary air fan. Primary air fans supply coal 
pulverizers with the air needed to dry the coal and transport it to the 
boiler. Primary air fans may be located before the air heater (cold 
primary air system) or downstream of the air heater (hot primary air 
system).
    In some cases, gas recirculation fans are used for controlling 
steam temperature, furnace heat absorption and slagging of heating 
surfaces. They are generally located at the economizer outlet to 
extract gas and re-inject it into the furnace.
    Fans rotate at high speeds, and experience erosion and cyclic 
fatigue. They therefore need to be replaced periodically. Fans (e.g., 
induced draft fans) may also be subject to high temperatures, erosive 
ash, and corrosive gases.
b. Consequences of Forgoing Project
    Poor fan operation translates immediately and directly to reduced 
boiler load and less production of electricity. If a large fan fails, 
it can shut down the unit. Failure of small fans in a multiple system 
will result in reduced boiler load. Fan systems that fail or that cause 
maintenance and employee safety problems must be replaced for the 
boiler to continue to operate.
c. Other Information
    Common replacement projects include balancing and blade 
replacements, and wheel, motor and rotor replacement. Fan replacement 
projects can cost up to $20/kw. Replacement of a forced draft fan 
system with a balanced draft fan system can cost up to $70/kw. A census 
of repair and replacement practices at coal-fired utility boilers shows 
that fans have been substantially replaced at more than 70 percent of 
the units in the industry.
                             mills/feeders
a. Project Description
    Feeders deliver raw coal from the coal bunker to the pulverizer 
(also called ``mills''). Coal crushers and conditioners are used in 
some cases to prepare the coal for the mills. Coal pulverizers then 
grind coal to a fine powder, suitable for efficient combustion in the 
furnace.
    Various types of feeders are used in the industry, including 
gravimetric feeders, volumetric feeders, and bucket-type feeders. 
Replacing volumetric feeders with technologically superior gravimetric 
feeders is common in the industry, in order to improve the consistent 
measurement of coal added to the mills.
    Pulverizers are manufactured in several designs. Some pulverizers 
use metal balls that roll around a metal track and crush coal. Other 
pulverizers use rollers to crush the coal. Both designs contain motors 
and gear boxes to drive the grinding mechanism. Pressurized air created 
by seals and air fans keeps the fine coal dust out of the motor and 
gears. Nevertheless, fine coal dust is present and causes continual 
wear and eventual failure of mills.
    The coal is sorted within the pulverizer and delivered to the 
burners by the primary air fan. In some designs, exhauster fans then 
deliver the pulverized coal through pipes to the burners for 
introduction into the furnace. The ``classifier,'' located at the top 
of the pulverizer, contains openings through which fine coal passes on 
its way to the burners; coarser particles hit the classifier and fall 
back to the grinding mechanism.
    The major causes of wear and deterioration in pulverizer systems 
are abrasion due to exposure to hard minerals such as quartz and pyrite 
found in raw coal, and erosion due to the stream of solids that strikes 
pulverizer surfaces. Given the constant wear experienced in a 
pulverizer, repair and replacement of pulverizers and related equipment 
is essential to continued operation of the boiler.
    The components that experience direct, constant wear and that 
require periodic replacement include rollers, tables, and balls; 
classifiers; bearings in rollers and the shaft; and seals and motors. 
Within the feeder system, belts, flow control devices, and associated 
piping must periodically be repaired or replaced. Eventually, abrasion 
and erosion of the pulverizer may become so severe that the pulverizer 
or mill internals must be replaced.
b. Consequences of Forgoing Project
    The obvious consequence of mill/feeder failure is the reduction of 
the capability of the mill to deliver coal to the boiler, and hence of 
the unit to generate electricity. As less fuel is available to the 
boiler, less steam can be produced. More subtly, improper mill 
performance leads to combustion problems that not only damage other 
equipment but that increase emissions. For example, coal which remains 
too coarse will not combust completely, and will cause a loss of 
efficiency and an increase in particulate emissions. Some equipment in 
a mill or feeder cannot be repaired effectively more than a few times 
because the mill parts then will not work together properly. 
Replacement of the mill is then necessary.
c. Other Information
    Replacing wear parts in the interior of the mill can cost up to $2/
kw, and replacement of a mill can cost up to $5/kw. A census of repair 
and replacement practices at coal-fired utility boilers shows that 
pulverizer mills have been replaced or substantially replaced (e.g., 
the entire grinding zone) at more than 50 percent of the units in the 
industry.
                        turbines and generators
a. Project Description
    In the steam turbine at a modern power plant, superheated steam 
from the boiler is exhausted over turbine blades (these look like the 
fanjet blades in a jet engine). Because the steam is very hot (about 
1000EF), enters at very high pressure (2400 to 3600 pounds per square 
inch), and contains impurities, turbine blades experience substantial 
wear and tear. For example, there are impurities in the steam--like 
little pieces of sand--hit the turbine blades at extremely high 
velocities and damage the blades by pitting them. When turbines are 
inspected, some blades or rows of blades (e.g., the ``high pressure'' 
or HP section) may need to be replaced.
    When blades are replaced, the manufacturer typically offers a new, 
more efficient design or better alloys as the result of R&D or new, 
more durable materials. Indeed, the older, less efficient design may no 
longer be available. Use of more efficient turbine blades also allows 
the turbine to use a smaller amount of steam to produce the same amount 
of electricity, thereby decreasing emissions per megawatt of power 
output. Other turbine components, including nozzles, diaphragms and 
rotors, are also commonly replaced when they deteriorate or fail.
    Generator rotors and stators are also subject to failure. The 
generator rotor turns (is rotated) inside the stator. Both the stator 
and the rotor are typically made of steel and have ``slots'' that run 
their length. Both the rotor and the stator have windings, that is, 
wires that fit into the slots. A direct current is applied to the rotor 
winding, which turns this large piece of steel into an electromagnet. 
The stator winding is a conductor (typically copper). When an 
electromagnet is turned relative to a conductor, it produces a current 
in the conductor. The current produced in the stator winding is the 
electricity made by the generator, which is then sent to the 
transmission grid.
    The windings are surrounded by insulation. This insulation can wear 
out due to heat, electrical and/or vibratory stress (e.g., rubbing on 
adjacent insulation.) Also, insulation can deteriorate due to exposure 
to contaminants such as moisture and oil, particularly from the cooling 
mechanism. If the wear is extensive, the entire winding itself must be 
replaced.
    Finally, the steam turbine shell may develop defects due to 
stresses created by high temperatures and high pressures. If the 
turbine shell develops defects, it is commonly repaired or replaced at 
the same time the turbine blades are replaced.
b. Consequences of Forgoing Project
    Replacement of damaged turbine blades is a necessity both from a 
reliability and from a safety standpoint. Damaged, rotating turbine 
blades can break off and fly through the turbine casing at extremely 
high velocity, creating the risk of serious injury or death and 
extensive damage to the power plant. To avert this catastrophe, turbine 
blades are inspected and replaced if wear and tear indicates they may 
fail.
    Besides the employee safety issue, a broken blade can damage other 
portions of the generating unit, resulting in prolonged unit shut-down. 
Even prior to failure, deteriorated blades reduce the efficiency with 
which steam is turned into electricity, thereby reducing the electric 
output of a generating station and increasing the amount of emissions 
per unit of electricity produced.
    Worn windings and insulation in the generator stator and rotor 
decreases the efficiency of the generator to convert mechanical energy 
to electrical power. This translates to increased fuel consumption and 
increased emissions per unit of electricity and decreases the capacity 
of the unit to produce electricity. Failed insulation also presents a 
fire hazard, and can result in faults that prevent the generator from 
operating at all.
c. Other Information
    Common projects include the replacement of turbine blade rows or 
sections and turbine rotors. Moreover, a generator rotor or stator is 
rewound periodically in the life of a unit. Turbine blade and turbine 
rotor replacement projects can cost up to $20/kw, while shell 
replacements can cost up to $60/kw. A census of repair and replacement 
practices at coal-fired utility boilers shows that more than 90 percent 
of the units in the industry have replaced turbine blades or rotors.
                               condensers
a. Project Description
    Once steam has passed through the turbine, it is condensed back to 
water, which is cleaned, pumped again to high pressure and returned to 
the boiler. The condenser provides the heat transfer necessary to 
convert the spent steam into water.
    The condenser consists of a large chamber containing bundles of 
long, thin tubes. The tubes contain flowing water (typically river 
water or some other source of cooling water). Low temperature steam 
exiting the turbine at pressure approaching a perfect vacuum is 
directed into the chamber across the outside of the bundles of tubes, 
which are arranged perpendicular to the steam path. As the steam flows 
over the outside of the tubes, the heat from the steam is transferred 
to the cooling water inside the tubes. As enough heat is removed from 
the steam, the steam condenses to water.
    The combination of steam constantly passing across the outside of 
the condenser tubes and water (filtered, but typically untreated) 
passing through the inside of the tubes leads to corrosion and erosion. 
Also, the interior of the tubes is subject to plugging and biological 
fouling. Despite constant efforts to clean the tubes, tubes eventually 
become partially or entirely plugged and no longer provide heat 
transfer. Also, if a condenser tube leaks, untreated river water will 
enter the steam path due to the vacuum on the steam side and will 
contaminate the high purity steam.
    Short-term repairs include intentionally plugging a leaking tube. 
When numerous tubes have become plugged, it is necessary to replace an 
entire set of condenser tubes (also known as retubing the condenser). 
When new materials designed to better withstand the destructive 
environment of the condenser are available, it is typical to use the 
improved materials.
b. Consequences of Forgoing Project
    Because the steam side of the condenser is at a vacuum, when a leak 
occurs, the dirtier cooling water flows into the steam side. This 
necessitates shutting down the unit so as not to allow the untreated 
water to damage the boiler and the turbine. The leaking condenser tubes 
are then plugged. As tubes are plugged, the unit becomes less 
efficient, meaning that its ability to generate electricity declines 
and more emissions are associated with each unit of electricity 
produced. Condenser tube leaks eventually become so significant that 
the unit is constantly being shut down to plug tubes. Eventually, the 
condenser must be retubed or the unit can no longer operate.
c. Other Information
    The replacement of entire tube bundles is common, and such 
replacement projects cost up to $10/kw at larger boilers. A census of 
repair and replacement practices at coal-fired utility boilers shows 
that more than 60 percent of the units in the industry have replaced 
condenser tubes.
                            control systems
a. Project Description
    Careful monitoring and control of operating conditions at a coal-
fired electric steam generating unit are necessary to insure safe, 
efficient, and reliable operation of the unit. Control and monitoring 
equipment at a unit consists of three major (core) systems: (1) boiler 
controls; (2) turbine controls; and (3) balance of plant management. 
Instruments and controls have advanced rapidly in the past two decades 
to provide greater operator knowledge and ability to optimize unit 
performance and to control emissions. For this reason, it is typical to 
replace out-dated benchboard type switches, lights, gauges, recorders, 
and manual/automatic stations with digital, computerized controls with 
touch screen monitors.
b. Consequences of Forgoing Project
    Because controls help manage all aspects of combustion, unrepaired 
or outmoded controls will prevent the boiler from operating as 
efficiently and safely as is possible with modern controls. Moreover, 
because outmoded controls cannot manage a unit with the same efficiency 
as modern controls, failure to replace outmoded controls will result in 
higher emissions associated with startup, shut-down and combustion 
staging. Often, replacement parts for outmoded controls may simply be 
unavailable.
c. Other Information
    The replacement of pneumatic controls with solid state, 
computerized or automated controls has occurred at most units, and will 
continue to occur as technology improves. Such projects can cost up to 
$10/kw on larger units, and $40/kw on smaller units.
                         coal and ash handling
a. Project Description
    Coal handling equipment includes everything involved in unloading 
the coal from its transportation device (a railcar, barge or truck), 
storing it in a pile, and then conveying it to the plant so that it 
arrives at the feeders. After unloading, the coal is typically 
transported to a storage pile by a conveyor belt and reclaim system. 
While on the pile, the coal is usually managed by bulldozer, and then 
pushed onto a conveyer belt feeder. Sometimes a crusher in the coal 
storage area ``pre-crushes'' the coal. The coal travels by conveyor 
belt to the plant, where it is distributed among a series of bunkers by 
the tripper cars. The bunkers sit above and supply the feeders.
    Much of the coal handling system is exposed to the weather. 
Moreover, coal is a hard substance that wears away the handling 
equipment. For example, conveyor belts, the motors that drive them, and 
structural equipment wears and corrodes over time, and this equipment 
is therefore commonly repaired and/or replaced. The rate at which the 
coal handling equipment deteriorates is influenced by the type of coal 
that is burned, with the result that variations in the coal that is 
burned in a boiler can lead to accelerated deterioration or 
obsolescence of existing coal handling equipment. Other factors that 
contribute to deterioration include local climate and proximity to salt 
water.
    Once coal is combusted, the ash that results from the combustion 
process is collected in hoppers (bottom ash) or by pollution control 
equipment (fly ash). Once collected, the ash is recycled or treated and 
stored in ash storage ponds or landfills. The equipment for collecting, 
transporting and storing ash is subject to deterioration resulting from 
corrosion, abrasion and exposure to the environment.
b. Consequences of Forgoing Project
    If coal handling equipment is not repaired or replaced when it 
deteriorates, fuel cannot be fed to the units and the plant must reduce 
load or eventually be shut down. Replacements are necessary when 
deterioration is so severe that repairs would be ineffectual, or where 
repairs would not resolve reliability problems. If ash handling 
equipment and disposal systems are not subject to constant maintenance 
and repair, the boiler will have to reduce load or cease operation 
until the ash it generates can be properly handled.
c. Other Information
    Common projects involving coal handling equipment include the 
replacement of conveyer belts and motors, pre-crushers, barge and rail 
unloaders, and tripper cars. Such projects can cost up to $4/kw. Common 
projects involving ash handling equipment can cost up to $15/kw.
                           feedwater heaters
a. Project Description
    Once the turbine has finished with the steam, the steam is 
condensed into water in the condenser and sent back to the boiler for 
reuse. Between the condenser and the boiler are a series of low 
pressure and high pressure feedwater heaters that gradually raise the 
temperature of the feedwater prior to returning it to the boiler, where 
it is then converted to steam. The feedwater system includes a 
condensate polishing unit (more common on larger, newer units) where 
impurities are removed, low pressure feedwater heaters, a deaerator 
heater, a boiler feed pump and high pressure feedwater heaters. From 
the last high pressure feedwater heater, the feedwater is delivered to 
the economizer inside the boiler.
    A feedwater heater consists of a shell that covers a densely packed 
bundle of U-shaped tubes in which the condensate or feedwater flows. On 
top of the shell, there is an inlet for extraction steam from the 
turbine. As the condensate or feedwater flows through the tubes, 
extraction steam passes over the outside of the tubes and transfers 
heat to the water inside the tubes. Condensate or feedwater passes 
through the heaters in series, gradually increasing temperature thereby 
making the overall unit more efficient.
    The feedwater heater system is subject to deterioration due to the 
effects of pressure, temperature and corrosion. It is common for tubes 
in this system to spring leaks, with the result that the heater must be 
bypassed until the unit can be taken off line to conduct repair or 
replacement activity. Newer corrosion resistant alloys to reduce 
maintenance problems are under constant development.
    When leaks are detected, feedwater tubes are typically plugged. 
From 10 to 30 percent of the tubes may be plugged in some units, 
resulting in a significant reduction in unit efficiency. At some point, 
plugging tubes is no longer an option and replacement is necessary.
b. Consequences of Forgoing Project
    Failure to plug leaking tubes results in a loss of overall unit 
efficiency and reliability. A tube leak therefore requires that the 
feedwater heater be bypassed until the unit can be taken off line for 
plugging or replacement of the leaking tubes. Plugged tubes cannot be 
feasibly repaired, so replacement is necessary once enough tubes have 
been plugged. Failure to replace the heater means that the heater must 
be removed from service, which can cause significant losses in 
efficiency and reduce the capacity of the unit to generate electricity, 
increase the emissions from the boiler per amount of electricity 
generated, and increase the reliability problems of the other feedwater 
heaters.
c. Other Information
    Replacing an individual feedwater heater can cost up to $5/kw for a 
large unit. A census of repair and replacement practices at coal-fired 
utility boilers shows that more than 80 percent of the units in the 
industry have replaced feedwater heaters or major tube bundles in the 
feedwater heaters.
                        sootblowers/water lances
a. Project Description
    When coal is burned in the boiler, ``ash'' is produced which 
adheres to the boiler walls and tube assemblies and to the air 
preheater. The buildup of ash immediately reduces the heat transfer 
capability of these components which, in turn, means that more fuel is 
required to maintain the same load. In the long term, the presence of 
ash (slag) will cause tube overheating and boiler tube leaks, and may 
completely plug an air preheater.
    Sootblowers are mechanical devices used for on-line cleaning of ash 
and slag deposits in the boiler, in order to maintain the heat transfer 
efficiency and to prevent damage to tube assemblies and other 
components. Various types of sootblower are used in a boiler depending 
on the location in the boiler, the cleaning coverage required and the 
severity of the deposit accumulation. Sootblowers basically consist of: 
(1) a tube element or lance which is inserted into the boiler and 
carries the cleaning medium (typically steam or compressed air), (2) 
nozzles in the tip of the lance to accelerate and direct the cleaning 
medium, (3) a mechanical system to insert or rotate the lance, and (4) 
a control system.
    Acoustic blowers, which rely on sound waves, are also used. 
Sootblowers of all designs must function in the harsh environment of 
the boiler and are subject to wear due to exposure to high 
temperatures, corrosion, and erosion from high velocity particles. 
Accordingly, sootblowers are commonly replaced as they wear out. Also, 
because the slagging characteristics of a boiler can change over time, 
it is common to change the type of sootblower as the slagging 
characteristics change or become better understood.
b. Consequences of Forgoing Project
    Failure to replace a deteriorated sootblower so that it can 
continue to remove soot, ash, and slag, will limit the capacity of the 
unit to generate electricity, and will eventually shut the unit down. 
Moreover, if boiler tube assemblies are not kept clean, more tube 
failures will occur, requiring more frequent shut downs to replace tube 
assemblies (see project family #1). Uncontrolled slagging can also 
cause catastrophic boiler damage if the accumulated slag falls from the 
boiler wall or roof onto the boiler floor.
c. Other Information
    Sootblowers damaged from wear have been replaced at most units in 
the industry. Replacement of water lances, sonic blowers and related 
technology is also common. Such projects can cost up to $9/kw.
                                burners
a. Project Description
    Burners provide the final link between the fuel and combustion air 
and the boiler. Burners are specialized tubes or barrels (in the case 
of cyclone boilers) which direct pulverized coal (carried by primary 
air) and combustion air (or secondary air) into the combustion zone. 
Each boiler has many burners. The arrangement and performance of the 
burners have a direct impact on the distribution of air, the stability 
of the flame in the boiler and the combustion efficiency. These factors 
are adjusted by controlling the rate and pattern in which air and fuel 
enter the boiler.
    For boilers other than cyclone boilers, dampers (driven by attached 
linkages) and vanes control the swirl and volume of air, while 
restrictors may be used to manage the volume of coal. Each burner 
consists of a coal (or other fuel) pipe and nozzle with a nozzle tip or 
impeller at the end of the nozzle at the interior wall of the boiler. 
Surrounding the fuel nozzle is the windbox, with secondary air passing 
through the windbox and into the boiler via a toroidal opening with the 
nozzle tip at the center. Accessories such as flame scanners and 
lighters are commonly found in the burner assembly.
    Burners, particularly the nozzle tips, are required to function in 
extreme conditions. Corrosion, erosion and temperature-related stresses 
wear or weaken the tips. Further, the combustion zone can extend to the 
tip itself, and the high temperatures can effectively destroy the tip. 
The damper linkages are subject to high use and may fail from exposure 
to the boiler environment. Finally, because burner configuration and 
performance play a key role in staging and controlling combustion, 
entire burners may be replaced with modernized designs intended to 
control the formation of NOx or otherwise improve the efficiency or 
completeness of the combustion, thereby reducing emissions.
    A cyclone boiler is designed to melt as much ash in the coal as 
possible during the combustion process, and then to drain it from the 
bottom of the furnace in order to keep molten slag off of the 
superheater and other tube assemblies. This design objective is 
accomplished by creating a combustion zone outside the main furnace. 
These combustion zones or ``cyclones'' are cylindrical barrels attached 
to the sides of the main furnace. Crushed coal and air are introduced 
into the cyclone in a tangential pattern, in order to create a swirling 
motion to promote mixing of the coal and air to ensure complete 
combustion of the coal. The introduction of crushed coal and air at 
high velocities erodes the cyclone, and the hot molten slag environment 
causes corrosion. High temperatures cause metal fatigue and 
deterioration of the cyclone.
b. Consequences of Forgoing Project
    Failure to replace damaged burners or cyclones reduces the 
efficiency of combustion. Moreover, a damaged burners can clog and 
create a safety hazard. Unrepaired damper linkages prevent the unit 
operator from controlling the volume and spin of combustion air and 
will reduce the efficiency of the unit, thereby increasing emissions 
for each unit of electricity generated.
c. Other Information
    Common projects involving burners include the replacement of 
cyclones, burner tips, burner linkages and the wholesale replacement of 
burners for low NOx designs. Burners or cyclones have been replaced one 
or more times at most units in the industry, at a cost of up to $30/kw.
                                 motors
a. Project Description
    There are numerous electric motors in a power plant. For example, 
motors are used to drive fans, pumps, conveyor belts, pulverizers, and 
so on. All motors have insulation which breaks down over time, causing 
the motor to overheat and even short out. Usually, when motors short 
out they shut down automatically, but they can even catch on fire or 
explode. When motors short out, they can be rewound or, if rewinding is 
too expensive, they must be replaced.
b. Consequences of Forgoing Project
    Failure to replace or to rewind a damaged motor risks a fire (or 
explosion if the motor is near coal dust) if the motor continues 
operating. Shutting down the motor means the pump, fan, mill, conveyor, 
etc. will no longer operate. This means that the unit must either 
operate at a lower capacity or potentially even that the unit must be 
shut down.
c. Other Information
    It is common to rewind or to replace a motor. Replacement projects 
can cost up to $5/kw per motor. A survey of repair and replacement 
practices at coal-fired utility boilers shows that it is common in the 
industry to replace electric motors.
                          electrical equipment
a. Project Description
    Electrical equipment is used to transmit electricity and make it 
usable for electrically powered fans, motors, conveyors, lights, and 
numerous other applications in a power plant. There are several types 
of electrical equipment, including buses or wires that transmit the 
electricity, transformers that convert it into a usable form, 
switchgear or breakers that turn it on and off and protect it from 
electrical surges. In addition, for motors, there are often motor 
control centers and motor starters. Also, the plant itself uses buses, 
transformers and switchgear in the process of supplying electricity 
from the generator to the grid.
    Shorts and overloads can occur in any of this equipment due to coal 
dust and the harsh environment of power plants. Damaged equipment is 
either repaired or replaced, depending on the severity of the damage.
b. Consequences of Forgoing Project
    Replacement of electrical components that have deteriorated or are 
damaged due to the harsh power plant environment is necessary to 
support the electrical equipment at the power plant. If the electrical 
circuits are not operating, the equipment served by that circuit cannot 
operate and the unit will be unable to supply electricity at its 
previous capacity, if at all.
c. Other Information
    Replacement of switchgears, and other electrical equipment 
components are very common. Replacement projects can cost up to $9/kw.
                                 pumps
a. Project Description
    Pumps are used to convey fluids around a power plant, including 
water (condenser circulating pumps) or water containing ash (ash sluice 
pumps). Pumps have moving parts. Ash sluice pumps are exposed to 
erosive, highly stressful environments. Other pumps, such as boiler 
feed pumps, are exposed to extreme temperatures and are expected to 
operate at very high pressures. These failure mechanisms lead to 
deterioration, which often requires replacement of a pump.
b. Consequences of Forgoing Project
    If a pump is not repaired, additional stress is placed on other 
pumps in the system, and reliability problems will result. Eventually 
(immediately for some pumps) failure to replace certain broken pumps 
means that the boiler cannot operate at its design pressure.
c. Other Information
    Common projects involving pumps include replacement of boiler feed 
pumps and ash sluice pumps. Replacement projects can cost $10/kw. A 
census of repair and replacement practices at coal-fired utility 
boilers shows that nearly 100 percent of the units in the industry have 
overhauled or replaced boiler feedpumps.
                     piping/ducts/expansion joints
a. Project Description
    Pipes are used to carry mass (fluids or fluids containing solids) 
through a power plant. Ducts are essentially square pipes that carry 
air or flue gas. In an industrial environment like a power plant, pipes 
and ducts spring leaks due to the high pressure, high temperature and 
corrosive environment. If a section of pipe or duct leaks on an ongoing 
basis, the economic choice is to replace that section.
    Expansion joints are flexible pieces that connect two sections of 
ductwork or piping. They are used because temperature differences cause 
different sections of ductwork or pipe to expand and contract at 
different rates. Even though expansion joints are designed to move as 
the contraction and expansion occurs, they can experience cracks and 
separations due to fatigue. If too many leaks occur, they must be 
replaced.
b. Consequences of Forgoing Project
    Leaking ducts, pipes or expansion joints dilute the power of the 
fan or pump. Failure to repair or replace the pipe, duct or joint, 
therefore, will prevent the unit from generating electricity at its 
design capacity. Moreover, leaks of steam, gasses or fuel present 
safety hazards which must be addressed in a timely manner once they are 
identified.
c. Other Information
    Replacing leaking ductwork, high temperature steam pipes, ash 
handling pipes, fuel piping, and expansion joints are common projects. 
It is also common to convert from fabric to metal joints or the 
reverse, depending upon boiler characteristics. Replacement and repair 
projects can cost up to $23/kw.
                            air compressors
a. Project Description
    Air compressors are mechanical devices similar to a pump, except 
that they compress air instead of a liquid. Air compressors have moving 
parts that are subject to wear. The principal use of compressed air in 
steam plants is for pneumatic drives for dampers and valves, system 
controls, some types of sootblowers, and power repair hand tools.
b. Consequences of Forgoing Project
    Failure to repair the service air system will affect at least some 
and perhaps many aspects of the plants controls. If control air is no 
longer available, it becomes impossible to position valves properly and 
the unit cannot be operated. Failure of the air compressors that 
service sootblowers will prevent the operation of those devices, with 
the resulting damage to the boiler (see project family #10).
c. Other Information
    Replacement is often the most economical choice for fixing a 
damaged compressor. Replacement projects can cost up to $2/kw.
                                 ______
                                 
                             APPENDIX THREE
    Statement of Paul Kern, Recording Secretary, Local Number 105, 
    International Brotherhood of Boilermakers, Iron Ship Builders, 
               Blacksmiths, Forgers and Helpers, AFL-CIO
               public meeting regarding new source review
    Members of the panel, thanks for allowing the Boilermakers Union to 
provide a statement at today's discussion of New Source Review. The 
Boilermakers are a diverse union representing over 100,000 workers 
throughout the United States and Canada in construction, repair, 
maintenance, manufacturing, professional emergency medical services, 
and related industries. I am recording secretary at one of our large 
locals, located in the Greater Cincinnati area.
    First, let me be clear today that Boilermakers do not oppose the 
Clean Air Act, nor do we oppose its rigorous enforcement. In fact, 
construction lodges of our union look forward to doing much of the 
actual work for the installation of new technologies and controls at 
utility plants and for industrial boilers across this region and the 
country. In reference to the NOx control program alone, our 
international President Charlie Jones recently wrote:
    ``The EPA estimates that compliance measures will cost about $1.7 
billion a year. A sizable portion of that money will go to the 
Boilermakers who do the work necessary to make the additions and 
modifications required by the SCR technology.''\16\
---------------------------------------------------------------------------
    \16\ Boilermaker Reporter, vol. 38, No. 1 (1999) SCR means 
selective catalytic reduction. SCR essentially consists of injecting 
ammonia into boiler flue gas and passing it through a catalyst bed 
where the NOx and ammonia react to form nitrogen and water vapor.
---------------------------------------------------------------------------
    Aside from NOx control, Boilermakers have always led the way on 
Clean Air Act issues. For example, Boilermakers were pioneers in 
installation of scrubbers and further in fuel-substitution programs at 
our cement kiln facilities. In short, Boilermakers have been there to 
meet the challenges of the Clean Air Act, to the benefit our members 
and all Americans that breathe clean air.
    However, Boilermakers cannot support the EPA's recent 
interpretation of its authority under the New Source Review program. 
NSR, correctly interpreted, forces new sources or those undergoing 
major modifications, to install new technology, like the technology 
President Jones mentioned. We support NSR in that context.
    But, when NSR is applied to the routine maintenance policies and 
schedules of existing facilities, very different results occur. In 
those cases, facilities are discouraged from undertaking routine 
actions for fear of huge penalties or long delays or both. By applying 
NSR in that way, we are pretty sure that Boilermakers won't have the 
opportunity to work on maintenance projects that we know are extremely 
important to energy efficiency. Just hearing about recent events in 
California is enough to make the case that facilities need to be as 
efficient as possible.
    Efficiency is not the only reason to encourage routine maintenance. 
Experienced professionals or Boilermakers new to the trade can both 
tell you: maintenance is necessary to maintain worker safety. Electric 
generating facilities harness tremendous forces: superheater tubes 
exposed to flue gases over 2000 degrees; boilers under deteriorating 
conditions; and parts located in or around boilers subjected to both 
extreme heat and pressure. Any EPA interpretation which creates 
incentives to delay maintenance is simply unacceptable to our workers.
    As you can see, Boilermakers do not ask for repeal or substantial 
revision of the NSR program. We encourage the development and 
installation of new technology, and we stand ready to continue to train 
and apprentice workers to meet the needs of the Clean Air Act. However, 
when the NSR programs goes where it wasn't intended--and discourages 
the very maintenance, repair and replacement activities that constitute 
the livelihood of Boilermakers--we must strongly object.
    Thanks for the opportunity to make a statement.
                               __________
Statement of Barry L. Johnson, Ph.D., F.C.R., Assistant Surgeon General 
(ret.), Adjunct Professor, Department of Environmental and Occupational 
Health, Rollins School of Public Health, Emory University, Atlanta, GA, 
           Representing Physicians for Social Responsibility
    Good morning. I am Barry Johnson, Ph.D., representing the 
Environmental and Health Program, Physicians for Social Responsibility 
(PSR). PSR has had a long-standing concern about hazards in the 
environment and the importance of physician education about them. We 
welcome the opportunity to brief the subcommittee on matters of 
environmental health. Prior to my retirement in 1999 as a commissioned 
officer in the Public Health Service, I served as Assistant 
Administrator of the Agency for Toxic Substances and Disease Registry 
(ATSDR), which was created under the Superfund Law of 1980. I am 
currently Adjunct Professor of Public Health, Emory University, Rollins 
School of Public Health in Atlanta. I am also editor-in-chief, Journal 
of Human and Ecological Risk Assessment.
    I have previously testified several times before Congress on 
matters of hazardous substances in the environment and their 
consequences to the public's health. My testimonies have always been 
based on current scientific findings and their implications for human 
health. In particular, my testimonies have presented Congress with 
specific information about the effects on the public's health of long-
term exposure to contaminants released from hazardous waste sites and 
other sources of release. My testimony today will not depart from 
previous testimonies. My purpose today is to update you on recent 
research findings from several sources. The findings, PSR believes, are 
of great import to the public's health and support the need for greater 
actions by government, private industry, and non-government 
organizations to reduce the pollution load experienced by the American 
public.
    In previous testimonies to Congress, I summarized findings about 
the hazard to human health posed by hazardous waste sites. In 
particular, I noted that the body of published epidemiological research 
points to an increase in reproductive disorders in children born to 
parents who resided near Superfund and similar hazardous waste sites. 
The overall pattern of reproductive disorders included birth defects of 
the heart, neural tubes, and oral cleft palate, and reduced birthweight 
has been reported in several studies. Of note, British investigators, 
using data from registers of congenital anomalies in five European 
countries, reported in 1998 that residence within 3 km of a landfill 
was associated with increased risks of neural tube anomalies, defects 
of the heart, and anomalies of arteries and veins. These findings from 
European investigators are quite similar to findings from studies of 
American Superfund and similar sites and suggest that landfills 
containing hazardous waste are a general public health concern. The 
gravity of the adverse reproductive outcomes from exposure to hazardous 
substances in the environment led PSR to develop its Birth Defects & 
Other Reproductive Disorders brochure and distribute it to more than 
20,000 medical specialists in obstetrics and family medicine.
    More than 60 studies of communities residing near hazardous waste 
sites are summarized in my 1999 book Impact of Hazardous Waste on Human 
Health. As an example of the impact of specific Superfund sites, both 
the Lipari site in New Jersey and the Love Canal site in New York share 
a common outcome: during the period of documented, greatest release of 
hazardous substances from these sites, the incidence increased of 
reduced birthweights of babies born to parents residing nearest the 
sites. When the releases were interdicted, birthweights returned to a 
normal pattern. This is a noteworthy observation implying that public 
health assessment of hazardous waste sites and site remediation are 
vital public health actions.
    The effects of release of hazardous substances from hazardous waste 
sites on cancer rates of communities near the sites are less clear than 
for reproductive outcomes. There are some published studies that show 
increased rates of cancers of the stomach, gastrointestinal tract, and 
urinary bladder, but in my opinion, there is not a current consistent 
pattern of association of various cancers with proximity to hazardous 
waste sites. As you know, most cancers have a relatively long latency, 
20 to 40 years, typically, perhaps contributing to lack of better 
understanding about any association between cancer rates and hazardous 
waste sites. However, the published work by ATSDR provides a basis for 
public health concern. Of the 30 hazardous substances most often 
released from Superfund sites, 18 are known human carcinogens or are 
reasonably anticipated to be. This knowledge is of great import to 
public health because it points us toward community and physician 
education programs and remediation priorities for EPA Superfund site 
clean-ups and other actions bearing on protecting the public's health.
    Since 1999, additional studies have been published in the 
scientific literature that associate specific health effects with 
residential proximity to hazardous waste sites. For example, British 
investigators reported small excess risks of congenital anomalies and 
low and very low birthweight in populations living near 9,565 landfill 
sites operating in Great Britain between 1982 and 1997. The anomalies 
included small, elevated risks for neural tube defects, hypospadies, 
and abdominal wall defects. In a different investigation, European 
researchers studied 245 cases of chromosomal anomalies and 2,412 
controls who lived near 23 hazardous waste sites in Europe. This year, 
the investigators reported an increase in chromosomal anomalies in 
persons living closest to the sites.
    These studies from European investigators add further scientific 
weight to previous studies that living near hazardous waste sites is 
associated with an increased risk of adverse reproductive outcomes, 
including birth defects and reduced birthweight babies. These are 
matters of serious public health concern and argue for a strong program 
of remediation of Superfund and other hazardous waste sites.
    At this point in my testimony, I want to bring some quite recent 
studies to the subcommittee's attention. These studies report serious 
public health consequences of air pollution. There are common themes 
across these studies. First, these studies have included data on the 
levels of toxicants in the environment of the populations studied. 
Second, these are studies of long-term, chronic exposure of the 
populations at risk. Such studies are difficult to conduct because the 
exposure levels are generally low, difficult to estimate or measure, 
and health outcome data may be hard to obtain. In other words, these 
kinds of longitudinal studies that engage both health data and 
environmental pollution levels are particularly valuable for public 
health purposes and for policies on environmental remediation.
    The effect of air pollution on children's health is a particularly 
important subject. Any disease or disability in children reduces their 
quality of life and brings expensive health care costs. Knowing the 
effects of environmental hazards on children's health is important 
because they are preventable: reduce the level of pollution. In regard 
to outdoor air pollution, one major study has reported serious 
consequences to children who resided in areas in California with 
measured levels of air pollutants. In 1992, the California Air 
Resources Board commenced a large-scale, long-term study of the health 
effects of children's chronic exposures in southern California areas of 
air pollution. Approximately 5,500 children in 12 communities were 
enrolled in the study. The children's health status was assessed 
through questionnaires, pulmonary function testing, and monitoring of 
school absences. The study's major findings to date include: 
correlation between lower lung function and more intense air pollution; 
slower lung growth associated with high levels of nitrogen dioxide and 
particulate matter (2.5 and 10 micrometers); lower breathing capacity 
for girls living in the most polluted communities; and more evident 
wheezing in boys exposed to higher levels of nitrogen dioxide and acid 
vapor. These findings are obviously of great concern to public health 
and raise the obvious question about whether air quality standards for 
air pollutants are adequately protective of human health.
    Another very recent study, conducted by the American Cancer Society 
(ACS) and associated investigators, assessed the association between 
long-term exposure to fine particulate air pollution and causes of 
death. Using vital status and mortality data collected by the ACS and 
by administering a survey questionnaire, risk factor data for 
approximately 500,000 adults were linked with air pollution data for 
metropolitan areas throughout the U.S. The investigators found fine 
particulate and sulfur oxide-related air pollution were associated with 
lung cancer, cardiopulmonary, and from all causes of death combined. 
Each 10-microgram/m3 increase in fine particulate air 
pollution was associated with about a 4 percent, 6 percent, and 8 
percent increased risk of all-cause, cardiopulmonary, and lung cancer 
mortality.
    While the effects of air pollutants on lungs are, and will remain, 
significant in terms of the public's health, scientific evidence is 
emerging that air pollutants may exert an even greater public health 
burden as a contributor to heart disease. Particularly alarming is the 
reported association between very small particles in air and their 
contribution to sudden heart failure. As examples of research findings, 
researchers examined air pollution levels for the years 1980-1989 in 
Milan, Italy, for association with deaths on days of elevated 
pollution. Among the findings, a significant association was found for 
heart-failure deaths (7 percent increase/100-micrograms/m3 
increase in total suspended particulate [TSP]). Similarly, another 
investigator analyzed daily mortality from nonexternal causes among 
Philadelphia, Pennsylvania, residents from 1973-1980. They found that a 
100-micrograms/m3 increase in the 48-hr mean level of TSP 
was associated with deaths due to cardiovascular disease.
    Other investigators suggest that exposure to fine (i.e., 2.5 
micrometer in diameter or less) particulate matter (PM2.5) 
decreases heart rate variability, possibly contributing to myocardial 
infarction. Although further research is needed to clarify the 
association between air pollution and fatal heart attacks, there is 
already sufficient data, I believe, to move forward with public health 
prevention actions, such as public awareness and physician education 
campaigns.
    Senators, the cited studies reinforce the body of scientific 
evidence that associates hazardous substances in the general 
environment with adverse health effects. As you know, the core 
principle of public health is to prevent disease and disability. 
Regarding toxicants in our communities, they should be eliminated or 
reduced to levels that don't cause adverse human health effects. EPA 
and States have made considerable progress in reducing environmental 
health risks, and the public health community supports further risk 
reduction, based on the best scientific evidence. Now is not the time 
to gamble with unproven administrative procedures that may set back the 
progress already made.
    Thank you for your attention, and I look forward to any questions 
from the subcommittee.
      Responses of Barry L. Johnson to Additional Questions from 
                             Senator Smith
    Question 1. Would you please provide citation for all data in your 
testimony--was this data peer-reviewed (if yes, by whom)?
    Response. Attached is my testimony, with references given as 
footnotes. All are peer-reviewed studies published in technical 
journals, except for the Air Resources Board study, which has not been 
published to date. My book (Impact of Hazardous Waste on Human Health) 
was peer reviewed by both ATSDR scientists and three persons outside 
government (Thomas Burke, Johns Hopkins University, School of Public 
Health; Philip Landrigan, Mt. Sinai Medical School; Doris Cellarius, 
Sierra Club).

    Question 2. Are you familiar with other peer-reviewed studies that 
draw similar conclusions--if so, please cite.
    Response. I don't know what is meant by ``similar conclusions.'' 
The references cited in my testimony are those key to my testimony and 
the cited authors' conclusions speak for themselves. If by ``similar 
conclusions,'' one means has anyone else published a synthesis paper 
like my testimony, the answer is, ``no, to the best of my knowledge.''

    Question 3. Are you familiar with other published, peer-reviewed 
research that demonstrates the primary cause of cancer incidents are 
due to the wide variety of environmental factors over a person's 
lifetime and not proximity to Superfund sites?
    Response. Yes, depending on how one defines ``environmental 
factors,'' there are published studies on the association between 
tobacco use and lung and mouth cancer, studies on association between 
long-term exposure to trihalomethanes in water with cancer, and there 
are occupational health studies that associate, e.g., various workplace 
toxicants with specific kinds of cancer. Also, the ACS study (reference 
No. 11 in my testimony) associates air pollution with excess mortality 
from lung cancer.

    Question 4. Please provide the specific citation for the American 
Cancer Society Study you refer to on page 6 of your written testimony?
    Response. See Reference No. 11 in the attached testimony.

    Question 5. Do you have any further comment on the testimony of Mr. 
Segal?
    Response. No.

    Question 6. Do you have any further comment on the testimony of Mr. 
Schaeffer?
    Response. No.
  

                                
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