[Congressional Record (Bound Edition), Volume 149 (2003), Part 20]
[Senate]
[Pages 28124-28127]
[From the U.S. 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

[[Page 28125]]

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 
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

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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 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

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           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.

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