[Congressional Record Volume 149, Number 161 (Friday, November 7, 2003)]
[Senate]
[Pages S14248-S14250]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AIR QUALITY AND THE BUSH ADMINISTRATION
Mr. JEFFORDS. Mr. President, I stand here to raise some questions and
issues of importance.
There are so many difficult problems that Americans must face every
day. These include crowded roads, finding adequate and affordable
health care, getting a good education for their children, and improving
their economic situation.
I believe our constituents want and should expect the Federal
Government to do whatever is possible to minimize these burdens with
minimal intrusion.
I also believe that Americans want to trust that the government is
working to protect them from involuntary risks or dangers that will
affect their lives, like defective products, unfair trade practices,
and corporate fraud.
Or, perhaps one of the public's greatest expectations about such
risks is that the Federal Government will effectively stop pollution
that would shorten lives, put people in the hospital or otherwise harm
their quality of life or their earning power. Not to speak of cancer or
developmental damage that might occur to their families.
It is my duty, as a Senator from Vermont and as the ranking member of
the Environment and Public Works Committee to see that the Federal
Government meets the public's expectations. Sadly, it is my duty to say
that in this matter the administration has grossly failed those
expectations and has betrayed the public's trust.
I am not here to simply be critical. I am here representing those
people, those communities, those populations who are sufferring because
this administration refuses to acknowledge that air pollution causes
illness and death. Actually, maybe they do know this, but they're
willing to look the other way at the misguided request of big
polluters.
There is a reason we have a Clean Air Act. To protect human health
and the environment. I can not imagine any member of Congress or any
elected or appointed official that would say that we don't need a
Federal Clean Air Act. But this administration is getting close to that
point.
I want my colleagues to know that I will be vigilant in pointing out
places where this administration is at war with the Clean Air Act. And
they are numerous.
I plan to work vigorously to defend the Clean Air Act throughout my
tenure in this body. I will not bend on this. I will fight efforts to
undermine the act in the energy bill, in appropriations bills, in any
venue that members may look for an opportunity.
Mr. President, 32,000 or more people are dying every year due to
power plant pollution. This is not a new number. It was first reported
in the year 2000 and is based on reliable, peer-reviewed science. That
is a crisis by anyone's definition. It is a call to action.
But, instead of taking urgent steps or really any steps at all to
control that pollution, this administration has given the dirtiest,
oldest power plants a permanent exemption from installing modern
controls that would cut millions of tons of pollutants.
Not only will this administration not force these power plants to cut
pollution in the future, but they announced earlier this week that they
would no longer penalize those power plants and refineries for
violating pollution limits in the past.
This reversal is stunning and unprecedented, to my knowledge. Just
weeks ago, we were assured that the administration would continue to
prosecute polluters who violated Clean Air rules in the past. Now they
are saying let's just pretend nothing bad ever happened.
That is like saying, ``Let's pretend that the thousands of lives
shortened by increased pollution from those illegal activities don't
matter.''
The combined effect of the change in rules and the evisceration of
enforcement cripples the Clean Air Act.
This Bush administration is trying to unilaterally reverse the great
progress in air quality that we have made due to the bipartisan
agreement in the amendments to the act passed in 1990.
I hope and will be working to stop this reversal through the courts
or by other actions.
The so-called ``clear skies'' proposal that the Administration has
advertised with taxpayer dollars is too little and too late.
It puts off real reductions in smog and acid rain causing pollutants
from power plants for many years beyond what the public's health
demands.
It puts them off beyond what the Clean Air Act could do right now if
[[Page S14249]]
only the Administration had the guts to stand up to the polluters'
lobbyists and use the act constructively.
At the same time that the President's proposal defers any real and
significant reductions in pollution, it immediately suspends or cuts
back on the important parts of the Clean Air Act that work right now to
protect local air quality from upwind sources and to push emissions
control technology forward.
By the agency's own analysis of clear skies in the year 2020,
hundreds of coal-fired units representing tens of thousands of
megawatts, will still be operating without modern pollution controls.
This means that people downwind of those plants will continue to
suffer in communities across the nation, in 20 or more states like
Alabama, Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Iowa,
Kansas, Kentucky, Maryland, Michigan, and on.
This just does not make sense. The administration's proposal still
leaves many many plants uncontrolled 18 years from now.
It defies the imagination that we won't ask those power plants to use
modern controls for a minimum of eighteen years. The technology is
available now and it doesn't cost that much.
And yet, this delay in the President's proposal and its suspension of
parts of the current Clean Air Act, will result in more than 8,000
people downwind of those plants dying prematurely every year when
compared to my bill, the Clean Power Act, or to a vigorous
implementation of today's Clean Air Act.
I have been prepared, as I have noted several times over the last 2
years, to work with the administration to work on compromise
legislation. My offer has been met with deafening silence.
That is unfortunate for all those whose lives will be shortened, for
the additional acid rain that will fall, for the asthmatic children who
will suffer, for the increase in global warming, for the smog-blocking
scenic vistas, and for the new lakes and fish contaminated by mercury.
But that silence is not unusual.
I have come to expect that the administration will not answer
straightforward questions or provide simple technical assistance.
And I have come to expect that the administration will not honor the
public's or Congress' right to obtain documents and information on
vital environmental policy matters.
So it was not a surprise to me that EPA has refused to honor its
promise to analyze the impacts of controlling mercury emissions at
various levels from powerplants. If they did a decent job, it would
show that the Clear Skies proposal is weak and far less effective than
today's control technology. Today's control technology--it is even
worse than that.
It is also not a surprise to hear rumors that EPA and the utilities
are seeking another delay in the legal deadline to control mercury and
other air toxics. As it is, this deadline is already many years later
than required by the Clean Air Act.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. JEFFORDS. Mr. President, I ask unanimous consent to have an
additional 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JEFFORDS. What is surprising is that anyone who has children
would consider such a delay. Mercury, much like lead, can cause
significant neurological and developmental damage to fetuses when a
mother consumes normal quantities of fish. It can also increase the
risk of heart, kidney and liver effects in adults. The National Academy
of Sciences has documented these risks well. Let me repeat that. The
National Academy of Sciences has documented these risks well.
However, in case the mothers and fathers who are considering
extending this deadline or proposing ineffectual rules, I have joined
with 12 other Senators in sending a letter to the Office of Management
and Budget and the EPA. The letter explains their legal and moral
duties, in the event that they have been forgotten. I ask unanimous
consent that the letter be printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. JEFFORDS. Mr. President, my inescapable conclusion, unless newly
confirmed Administrator Leavitt can change it, is that the Bush
administration does not care about the burdens that polluters lay upon
the public.
Perhaps the administration does not care about the deathly ill senior
citizens suffering from pollution-induced heart or lung disease, or the
parents who are struggling to help their learning disabled or
physically handicapped child cope with everyday life, or the 150
million Americans who are breathing unhealthy air.
Whatever their reasons, this administration is making it harder to
breathe, to see, and to trust.
Mr. President, I yield the floor.
Exhibit 1
U.S. Senate,
Washington, DC, November 6, 2003.
Hon. Joshua B. Bolten,
Director, The Office of Management and Budget, Washington,
DC.
Hon. Michael O. Leavitt,
Administrator, U.S. Environmental Protection Agency,
Washington, DC.
Dear Director Bolten and Administrator Leavitt: We are
writing to urge the Office of Management and Budget and the
Environmental Protection Agency to promulgate expeditiously a
proposed rule to set maximum achievable control technology
(MACT) standards to reduce utility emissions of hazardous air
pollutants (HAPs), including mercury, as required by the
Clean Air Act. As you may know, this proposed rule must
comport with, at a minimum, the requirements of sections 112
and 307 of the Clean Air Act, the Administrative Procedures
Act, Executive Order 12866, and all applicable settlement
agreements. News accounts suggest that the rule is being
written to include an arbitrary reduction requirement and
compliance date that are not justifiable given the Clean Air
Act's specific language, and in a manner that may not produce
a defensible proposal.
The Clean Air Act Amendments of 1990 require EPA to
promulgate national technology-based standards for utilities
that emit hazardous air pollutants, if deemed appropriate and
necessary by the Administrator. After many years of Agency
delay on that utility MACT standards rule, a settlement
agreement was entered into between EPA and environmental
organizations. The settlement agreement required EPA to sign
a determination of whether regulation of utility HAP
emissions is appropriate and necessary, and to follow a
positive determination with a proposed and finalized rule, by
dates certain. Pursuant to that settlement agreement, as last
modified in November 1998, EPA Administrator Carol Browner
finally made a regulatory determination in December 2000 that
it was appropriate and necessary to regulate utility HAP
emissions through the MACT regulatory process. Under this
agreement, EPA must now publish a proposed utility MACT rule
by December 15, 2003, and a final rule by December 15, 2004,
with the compliance date set for December of 2007.
In general, the Clean Air Act Amendments of 1990 require
EPA to set a MACT standard that achieves the maximum degree
of reduction in emissions of hazardous air pollutants from
all new and existing major and area stationary sources,
taking into consideration the cost of achieving such emission
reduction, and any non-air quality health and environmental
impacts and energy requirements. But, section 112 of that Act
defines MACT for new facilities as an emission standard no
less stringent than what is achieved in practice by the best-
performing similar source for which the Administrator has
emissions information. Existing sources are required, at a
minimum, to meet the average emissions of the best
performing 12% of existing units, though EPA can set a
more stringent standard. Section 112 (f) also requires EPA
to assess the remaining (i.e., ``residual'') risks posed
to human health within eight years after the promulgation
of MACT standards, and regulate sources of HAPs to provide
an ample margin of safety to protect public health. The
EPA has moved responsibly in the past to regulate mercury
emissions from all major non-utility sources, leaving
utilities as the largest source of mercury air emissions
in the country.
According to data collected by EPA and presented to
industry groups in December 2001, there are technologies
available today to reduce mercury and other HAPs from
utilities in an efficient and economical manner. In fact,
EPA's own analysis shows that several of today's technologies
can control mercury emissions from coal-fired utilities by
99% for new sources, and by 98% for existing sources, without
subcategorization by coal type. The upcoming utility MACT
proposed rule must reflect this technological capability.
Furthermore, given that this technology is already available
today, there is no defensible reason to delay for any source
the compliance date of December 2007, a deadline mandated by
both the Clean Air Act and the settlement agreement.
Section 112 (d) of the Act allows for subcategorization of
the standard, but only by class, type, and size of source,
assuming it does not result in a delay of the compliance
date. In other words, subcategorization is allowable for
physical differences in plant design. We are concerned that
EPA may be
[[Page S14250]]
considering subcategorization by coal type, which does not
constitute one of these allowable distinctions. Including
such a subcategorization in the MACT rule would not be
legally defensible.
As you know, the Executive Order on regulatory review (No.
12866) enhances planning and coordination with respect to new
and existing regulations, with the understanding that the,
``. . . American people deserve a regulatory system that
works for them, not against them: a regulatory system that
protects and improves their health, safety, environment, and
well-being. . . .'' In particular, E.O. 12866 states that in
deciding whether and how to regulate, agencies should assess
all costs and benefits of available regulatory alternatives.
Further, in choosing among alternative regulatory approaches,
agencies should select those approaches that maximize net
benefits, including potential economic, environmental, public
health and safety, and other advantages, as well as
distributive impacts and equity.
Despite that directive, we are concerned that EPA and OMB
may not be considering a full range of regulatory options
that includes accurate implementation of the Clean Air Act,
namely, a standard based on technologies available today that
can achieve a 98%+ reduction in mercury emissions. We expect
the upcoming proposal to reflect what the law requires by
offering either the most stringent technology standard for
public comment, or at least a range of options that includes
this most stringent standard. We also expect that the
regulatory impact assessment, as required by the Executive
Order, which accompanies the proposed rule to include an
assessment, and the underlying analysis, of the costs and
benefits (including reductions in other air pollutants
such as fine particulate matter) of potentially effective
and reasonably feasible alternatives to the proposed rule
that have been identified by the public.
We are also troubled that the Clean Air Act Advisory
Committee established under the Federal Advisory Committee
Act to advise EPA on development of utility MACT standards
has not received promised analyses and has been
inappropriately and abruptly excluded from the regulatory
process. EPA worked with industries, environmental
organizations, and State and local agencies in the context of
these FACA workgroup meetings over a two year period. During
these meetings, environmental stakeholders requested specific
considerations and mercury reduction scenarios to be included
in a model the Agency was developing.
The Agency promised to incorporate group recommendations
and deliver findings of this updated modeling to the
workgroup by March 4, 2003, yet the analysis was not
available by that time. The Agency promised then to share the
analysis by April 15, 2003, yet the analysis was again not
available, and EPA staff abruptly cancelled that day's
workgroup meeting, saying, ``We will get back to you
regarding a future meeting.'' The utility workgroup was never
able to schedule a subsequent meeting with the Agency, and
has still not received the modeling analysis promised almost
eight months ago. This failure to deliver promised analysis
is unacceptable, and the abrupt exclusion of stakeholder
involvement is not good governance.
We expect the Environmental Protection Agency and the
Office and Management and Budget to propose utility MACT
standards on schedule. We expect that proposal will use the
best performing facilities as the guide in setting standards
that obtain the maximum reductions achievable. We also expect
EPA to deliver on its promises by swiftly completing and
distributing to the workgroup the modeling analysis for
group-specified mercury reduction scenarios. Further, we
expect EPA to continue to work in good faith to incorporate
public comment on the proposal and finalize a thoughtful rule
by December 15, 2004, while maintaining the December 2007
compliance date. To do any less would be legally
indefensible, and would prolong damage to the public's
health.
It is well documented that mercury from utility air
emissions endangers our health and environment by depositing
into our lakes, streams, and oceans and bioaccumulating in
the fish we eat. The National Academy of Sciences has
confirmed that fish consumption by pregnant women can lead to
neuro-developmental damage in fetuses, and that all other
adults can be put at greater risk of heart, kidney, and liver
effects. Due to this public health threat, 44 States now post
advisories warning the public about the risks of fish
consumption. Dozens of other toxic air pollutants are
released in significant quantities from power plants as well,
including arsenic, cadmium, and lead, many of which are known
carcinogens. The Clean Air Act does not allow for
promulgation of a rule on this matter that is ineffectual in
reducing to the maximum extent achievable the major HAPs
emitted by utilities.
Thank you for your attention to this matter. We look
forward to your prompt response.
Sincerely,
Jim Jeffords, Olympia Snowe, Joseph Biden, Ted Kennedy,
Hillary Rodham Clinton, Jack Reed, Dick Durbin, Patrick
J. Leahy, Susan M. Collins, Frank Lautenberg, John F.
Kerry, Lincoln D. Chafee, Charles Schumer.
Mr. JEFFORDS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, I ask unanimous consent to speak in
morning business for as much time as I may consume.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________