[Congressional Record Volume 145, Number 158 (Wednesday, November 10, 1999)]
[Senate]
[Pages S14517-S14519]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   OPPOSITION OF EFFORTS TO BLOCK THE DEPARTMENT OF JUSTICE'S RECENT 
                           ENFORCEMENT ACTION

  Mr. LIEBERMAN. Mr. President, I rise today to speak briefly about an 
issue which has surfaced recently in the national press, and now arises 
with regard to the remaining appropriations bills before us. On 
November 3rd, the Justice Department filed seven lawsuits on behalf of 
EPA against electric utility companies in the Midwest and South. The 
lawsuit charged that 17 power plants illegally polluted the air by 
failing to install pollution control equipment when they were making 
major modifications to their plants. This action is one of the largest 
enforcement investigations in EPA's history, and seeks to control 
pollution which contributes to degraded air quality throughout the 
Northeast. I have recently learned that some of the defendants may be 
seeking relief from this enforcement action by adding a rider to one of 
the remaining appropriations bills. I am speaking with my colleagues 
here today in strong opposition to this effort. To seek relief for 
pending violations of federal law through a rider without any 
congressional hearing, debate, or voting record, is utterly 
inappropriate. It undermines the democratic process which is 
constitutionally guaranteed to American citizens, and to the states 
which have similar cases pending.
  The alleged violations are extremely serious. Congress has long 
recognized the need to control transported air pollution. Provisions to 
study and address the issue have been included by major amendments to 
the Clean Air Act. Yet the problem still remains and the statistics are 
staggering. They demonstrate just how much older, Midwestern 
powerplants contribute to air pollution in the Northeast. For example, 
one utility in Michigan emits almost 6 times more nitrogen oxides than 
all the utilities in the entire state of Connecticut. Ohio power plants 
produce nearly 9,000 tons a day of sulfur dioxide, which directly 
contributes to acid rain. One single plant in Ohio produces as much 
nitrogen oxide as all of the plants in the state of New York. 
Approximately 67 million people east of the Mississippi River live in 
area with unhealthy levels of smog. EPA estimates that every year that 
implementation of regional pollution controls are delayed, there are 
between 200-800 premature deaths, thousands of additional incidences of 
moderate to severe respiratory symptoms in children, and hundreds of 
thousands of children suffering from breathing difficulties. Now these 
polluting power plants want special relief during the court's review.
  The alleged violations result from a portion of the Clean Air Act 
that many refer to as the ``grandfathering'' provisions. When the Clean 
Air Act was amended in 1970 and 1977, there were two categories of 
requirements: those for existing power plants, and those for new 
sources. At the time, most people envisioned that the older coal 
burning plants would soon be retired, making the additional controls 
for old plants unnecessary. Instead, the life span of older coal fired 
plants has been extended by modifications to their facilities. Many of 
the older coal fired plants have stayed around for three decades; and 
coal power plants are now the largest industrial source of smog 
pollution. Of the approximately 1,000 power plants operating today, 500 
were built before modern pollution control requirements went into 
effect.
  Although the Clean Air Act did exempt older plants from the new 
standards, it required that the plants meet a test of ``prevention of 
significant deterioration'' to protect the public when a plant 
undertook a major modification. Although the definition of ``major 
modification'' has been debated, Section 111 of the Clean Air Act 
clearly states that a modification means ``any physical change . . . 
which increases the amount of any air pollutant emitted by such source 
or which results in the emission of any air pollutant not previously 
emitted.'' What is at stake in the recent enforcement action is the 
question of whether the power plants undertook major modifications 
without installing state of the art pollution controls, in violation of 
this Clean Air Act requirement.
  Mr. KERRY. Will the Senator yield for a question?
  Mr. LIEBERMAN. Certainly.
  Mr. KERRY. I understand from some of the publicity around a similar 
suit filed by the New York Attorney General that some of the 
modifications being made to power plants were significant. For example, 
one company allegedly replaced a reheater header and outlet, a 
pulverized coal conduit system, the economizer, and casing insulation. 
While it is impossible to judge any of these types of modifications 
without additional information, it certainly seems like utilities 
created a loophole in the law to essentially rebuild the system without 
considering it as a major modification. Would a legislative rider on 
this issue essentially pre-judge the court's findings as to whether the 
modifications undertaken at the plant are indeed ``major''?
  Mr. LIEBERMAN. Yes. With this rider, Congress would be substituting 
its opinion for the factual and legal analysis by the court. There will 
be no opportunity for expert opinions to be heard. In fact, I 
understand there may even be discussions about trying to add rider 
language which would allow modifications which would result in 
significant increases in emissions, by basing them on a unit's 
potential to emit pollution. This change is a significant departure 
from the current law, which requires that pollution controls be 
included when plants are making modifications that cause emissions to 
increase. For example, a plant's potential to emit pollution may be at 
10 tons, while it actually emits 7. The test has been that if 
modifications are made that raise emissions above the 7 tons, pollution 
controls are required to be instituted. Since the potential emissions 
are often much greater than actual emissions, actual emissions have 
been the threshold to trigger public health protections. A rider that 
would seek to allow modifications to go forward would give utilities a 
license to continue to pollute our air while the enforcement action is 
pending. In its worst form, it would also ``pre-judge'' the court's 
determination on these matters. These are major reasons why I oppose 
using a rider to address this issue. It makes no sense for Congress to 
make a statement on this complex issue with no opportunity for public 
deliberation. I yield back to my colleague from Massachusetts.

  Mr. KERRY. I understand that some suggest that it would be impossible 
to achieve new pollution standards because of technological 
limitations. I would like to address that point. States in Northeast 
have already taken steps to reduce pollution to comply with Clean Air 
Act requirements, including instituting major controls on these older 
power plants ed plants. Northeast Utilities has spent $40 million in 
the last 8 years to reduce fossil plant emissions. In a July 31, 1998 
letter to Administrator Browner, Northeast Utilities wrote that ``in 
our experience the Merrimack Station selective catalytic reduction 
technology is effective in removing NOX, can be installed fairly 
quickly, and the installation has minimal impact on the availability of 
the generating unit.'' Other companies, including Pacific Gas & 
Electric and Southern Company have made similar

[[Page S14518]]

investments at plants in Massachusetts. While these are only a few 
examples, the experience of these companies is echoed by others. Real 
world experience bears out the fact that solutions are available and 
are cost effective. It is also interesting to note that the Tennessee 
Valley Authority, which is the subject of the enforcement action, 
recently announced plans to implement state of the art ozone controls. 
The solutions are out there, and as utilities in New England have 
demonstrated, when there is a will there is a way.
  I would like to address what is, in my opinion, the fundamental 
problem with this rider. These power companies and our Department of 
Justice have a legal dispute, and that dispute should be settled 
through the legal process. I understand that some of the defendant 
companies, and some in the Senate, may feel that the Environmental 
Protection Agency and the Department of Justice are being overzealous 
in pursuing this enforcement action or that there are politics at play 
here. I respectfully and strongly disagree, and I urge my colleagues to 
disregard such rhetoric. It has been estimated that as many as 1,000 
people each year die in Massachusetts from air pollution from power 
plants, automobiles and other sources. And, in particular, emissions 
from coal-fired plants, the dirtiest of which are outside my state, 
cause high levels of ozone, which increases the incidence of 
respiratory disease and premature aging of the lungs. Acid deposition 
from sulfur can severely degrade lakes and forests. Mercury, which is 
highly poisonous, accumulates in fish locally. In other words, there is 
a very real cost to this pollution. Indeed, for some, the price they 
pay is their very health and well being. I can accept that some of my 
colleagues may feel that the Department of Justice or the Environmental 
Protection Agency is pursuing a flawed legal argument, but I cannot 
accept that the people who are alleging harm, who are paying the price 
for this pollution, should be denied their day in court. The Department 
of Justice should not serve at the pleasure of Congress and defendants 
with the power influence Congress, it should serve the law and the 
people. I yield to my colleague Senator Lieberman.
  Mr. LIEBERMAN. Thank you. Certainly, many of our constituents have 
concerns about how cost and service delivery would be implicated under 
any enforcement action. If the court were to impose fines and 
injunctive requirements which would force power companies to go out of 
business, I think we would all join in opposing that outcome. Yet time 
and again, we hear claims that such dire outcomes will occur when we 
ask companies to comply with the law. But the evidence shows that 
environmental goals are being met without sacrificing economic growth. 
In this circumstance, I believe the Department of Justice and EPA have 
been clear that their objective, if the violations are found to have 
occurred, is to require that the utilities make appropriate investments 
in pollution control. In fact, EPA has a demonstrated record on the 
kind of remedy it has sought in a similar case that involved another 
segment of industry.
  EPA recently undertook a similar enforcement action against the paper 
and pulp industry for similar major New Source Review violations. After 
looking into the paper and pulp sector as part of its Wood Products 
Initiative, the EPA found New Source Review violations at roughly 70-80 
percent of the facilities it investigated. Through its enforcement 
action, EPA was able to work with industry to generate emission 
reductions as high as 500 tons of volatile organic compounds. However, 
these enforcement actions did not require that controls be put in all 
at once. Rather, a schedule was created to phase in controls so that 
the pollution controls were instituted in a way that protected the 
public without crippling the industry. It is disingenuous to argue that 
we need a preemptive rider to protect against what the outcome of the 
pending enforcement action might be. There is a history of enforcement 
decisions which demonstrate that the courts secure remedies that 
protect the public's interest, and that EPA has had a willingness to 
work with industry to that end.
  Fundamentally what we are addressing here is a matter of fairness. 
Right now utilities in Southern and Midwestern states emit over 4.5 
times more nitrogen oxides than utilities in the Northeast. A study by 
the Northeast States for Coordinated Air Use Management found that 
northeastern states will have to pay between $1.4 and $3.9 billion for 
additional local controls to reduce ozone pollution if six upwind 
states fail to implement needed controls. I notice that my colleague 
from Vermont is here. I yield the floor for him to offer some remarks 
about how the equity issue is particularly important within a 
deregulated marketplace.
  Mr. JEFFORDS. I thank my distinguished colleague from Connecticut for 
his acute remarks. He is quite right: at root, this is a question of 
equity, and it is a question of fundamental importance in a deregulated 
power market.
  The Nation's dirtiest power plants have abused loopholes in federal 
law to dirty our air, pollute our lungs, and kill our most vulnerable 
citizens. With one set of loopholes about to close, these power plants 
now seek to create new ones.
  These power plants have exploited the law for nearly 30 years. Now, 
EPA is exposing their effort for what it is: a blatant violation of the 
public trust. In response, these dirty polluters are pushing 
appropriations riders that would justify and permanently extend their 
unlimited ability to pollute.
  Haven't these power plants done enough damage already? Isn't it 
enough that they have been allowed to pollute 10 times more than our 
plants in the Northeast for years and years? Couldn't they now apply 
the same pollution control equipment that our plants in the 
Northeast employ?

  The problem is growing even worse with the deregulation of 
electricity markets. In the five years since deregulation of the 
wholesale electricity market, increased generation at coal fired power 
plants has added the equivalent of 37 million cars worth of smog to our 
air. These power plants are now seeking to permanently extend their 
unfair advantage.
  We need a level playing field. The nation's dirtiest power plants 
should not be able to exploit loopholes in federal law at the expense 
of the rest of the nation. We need to pass laws to clean up our air, 
not make it dirtier. I strongly oppose any attempt to make it easier 
for the nation's dirtiest power plants to continue their excessive 
pollution.
  Mr. MOYNIHAN. Mr. President, I want to thank my colleagues for 
voicing their justified concerns on this important issue. I understand 
that there is the potential for language to be added to one of the 
remaining appropriations bills that would interfere with the efforts of 
a number of states to seek relief from dangerous air pollution they 
receive from a number of large coal-burning facilities which may have 
violated the Clean Air Act.
  As Senator Lieberman has explained, a number of coal-burning 
facilities were ``grandfathered,'' exempting them from pollution 
control requirements. Congress believed that utilities would soon 
retire these older plants. The grandfathered facilities were given 
permission to proceed with routine maintenance, but any major 
modifications would be subject to review. It now appears that a number 
of these facilities did circumvent the law by increasing generating 
capacity without installing the appropriate pollution control 
technologies.
  Now, it appears these same facilities--after receiving notification 
that New York and potentially other states intend to sue for these 
violations of the Clean Air Act--may, once again, circumvent the law by 
encouraging the adoption of a rider which would interfere with these 
lawsuits. Any effort by implicated utilities to thwart efforts of 
States to obtain injunctive relief, which States could use to mitigate 
damage which has already occurred, is inappropriate.
  Throughout my career, I have been a strong proponent of allowing the 
Courts to do their work without interference of politics--indeed, that 
was the intent of the Framers of the Constitution. Madison and Hamilton 
eloquently explained the importance of a balance of powers in The 
Federalist Papers. The Framers of the Constitution presumed conflict. 
The Constitution assumes self-interest. It carefully balances the power 
by which one interest will offset another interest, and the

[[Page S14519]]

outcome will be, in that wonderful phrase of Madison, `the defect of 
better motives.'
  The States must be allowed to protect their rights. I should think 
that any Member of this body ought to defer to the courts before which 
this issue is now being placed.
  Mr. LEAHY. Mr. President, I want to join my colleagues in voicing my 
strong objection to a rider that I understand may be attached to one of 
the remaining appropriations bills. The rider would block all or part 
of an ongoing federal environmental enforcement action. If what I hear 
is true, I am troubled on several levels. First, I think that it would 
set a very dangerous precedent for Congress to attempt to squash 
Federal enforcement actions of any kind. The procedures for testing and 
appealing the appropriateness and reach of enforcement actions through 
the court system and under the Administrative Procedures Act are well 
established. These procedures do not include a back door, last minute 
``Hail Mary pass'' by Congress using a rider to an appropriations bill 
as the vehicle. In this instance, someone does not like an 
environmental enforcement action. If we do it here, will we attach 
something to appropriations bill to stop antitrust enforcement actions? 
How about price fixing cases? Where would this type of meddling cease?
  What we may be seeing with the filing by EPA and DOJ is an 
enforcement action that has hit the bull's eye dead-on. And now 
utilities who may have crossed the line are pulling out all the stops 
to thwart the action.
  Let's not kid ourselves about what is at stake. Many of us have 
drafted and introduced legislative proposals to address power plant 
pollution. We have turned up the heat, and the industry has taken 
notice. Further, the debate over electric utility restructuring is 
starting up again in the House of Representatives and the Senate. While 
there are substantial economic benefits possible under restructuring, 
Congress should also address environmental consequences of 
deregulation. In order to alert the Senate leadership of this important 
issue that has so far been ignored in the restructuring debate, I have 
asked my colleagues to join me in sending a letter to the Senate 
leadership requesting that the Senate include a provision to eliminate 
the grandfather loophole for older power plants. My colleagues from 
Connecticut and New York certainly knows the history of the Clean Air 
Act more than any of us. Senator Lieberman, how do you see this 
enforcement action affecting the Clean Air Act loophole?
  Mr. LIEBERMAN. I thank my colleague from Vermont. As you have argued 
in the past, the 1970 Clean Air Act Amendments assumed that one of the 
major sources of these pollutants--older power plants--would be retired 
and replaced with cleaner burning plants. Unfortunately, this has not 
happened. The average power plant in the United States uses technology 
devised in the 1950's or before. The EPA-DOJ enforcement action is now 
alleging that many of these generating units have been modified and are 
no longer entitled to their grandfathered status.
  Mr. LEAHY. And, I think we are making a fair statement in saying that 
these grandfathered power plants will enjoy an important competitive 
advantage under restructuring because they do not have to meet the same 
air quality standards as newer plants. Many of these grandfathered 
plants are currently not running at a high capacity because demand for 
their power production is limited to the size of their local 
distribution area. Under restructuring, the entire nation becomes the 
market for power and production at these grandfathered plants and their 
emissions will increase. Deregulation of all utilities will drive a 
national race to capture market share and profit through producing the 
cheapest power.
  Some or all of the rider may apply to plants operated by the 
Tennessee Valley Authority (TVA). What do we know about TVA's fossil 
fired power plants in Tennessee, Kentucky, and Alabama? Fifty-eight of 
59 units are grandfathered, with the average startup year being 1957, 
13 years before the Clean Air Act was passed. The average electricity 
prices for the TVA states are 6.03 cents in Tennessee, 5.58 cents in 
Kentucky, and 6.74 cents in Alabama. The average price nationally in 
1997 was 8.43 cents. TVA sells some of the cheapest electricity, in 
part, because it is operating these old, subsidized grandfathered 
plants. In a deregulated national market, will TVA be competitive? The 
answer is yes.
  TVA-wide in 1997 the 59 units emitted 98.5 million tons of CO2, 
nearly 5% of the U.S. total for power plants. If the TVA plants were 
all in one state that state would rank sixth in CO2 emissions. In 1997, 
the TVA plants emitted 808,500 tons of acid rain producing SO2. If the 
TVA plants were all in one state that state would rank fifth in SO2 
emissions. Unfortunately we do not have comparable data for ozone 
producing nitrogen oxide emissions or for emissions of toxic mercury, 
but I think my point on emissions is made. We should not be looking for 
a way to unfairly exempt TVA or other grandfathered plants from 
environmental regulations, rather we need to be looking for the best 
ways to bring these old plants up to date with current technology.
  Again, I want to thank my colleagues for their conviction on 
objecting to this rider. Congress needs to close the grandfather 
loophole, not attempt backdoor ways to thwart the will of the prior 
Congresses that enacted the Clean Air Act of 1970, and the amendments 
to it in 1977 and 1990.
  Mr. LAUTENBERG. Mr. President, I would like to join my colleagues in 
expressing concern about the language that would interfere with 
enforcement actions against several power companies. Here we have an 
excellent example of why we should not be addressing complex, 
controversial matters in last-minute amendments to spending bills. The 
proponents of the language assert that they have no interest in 
interfering with the EPA-DOJ enforcement actions. In fact, the language 
they have been circulating would wreak havoc on the enforcement 
actions. The proponents assert that they are interested merely in 
allowing routine maintenance to occur, but in fact their language makes 
no mention of routine maintenance. The proponents assert that their 
language would have no impact on the environment, but in fact their 
language would allow increases in actual emissions. They also raise the 
specter of drastic effects to the power industry, which we have not 
seen in other industries that faced similar enforcement actions.
  At the very least, we should all agree that this issue is 
sufficiently complicated and controversial, and its impacts on public 
health profound enough, that it deserves to be worked out in the 
authorizing process. It is for problems like this that we have 
authorizing committees, such as the Environment and Public Works 
Committee on which I sit, and before which I am sure the proponents 
would find a sympathetic audience. It is in the daylight of the 
authorizing process, where we can hear from expert witnesses, where we 
can have public markups, and where we take the time to untangle and 
properly resolve these types of issues, that we should address this 
issue.

                          ____________________