Opening Statement of Senator Patrick Leahy,
Senate Committee on Appropriations
Subcommittee on VA-HUD and Independent Agencies
Hearing on EPA Budget for FY2003
Witness:  Administrator Whitman
March 20, 2002

Welcome Administrator Whitman. 

You have one of the most difficult jobs in Washington – and one of the most important to each and every American.  EPA’s mission is to safeguard our nation’s precious lands, air, and water and to protect the health of our citizens, particularly our children, from environmental pollutants.  And EPA has the unenviable task of balancing all of the many major health and environmental issues we have today with increasingly limited resources.                                                 

I have worked well with your agency on many occasions.  In my home state of Vermont, EPA has been instrumental in helping Vermont citizens restore the health of Lake Champlain and the Connecticut River watersheds. 

Your agency has also worked with local communities and made a commitment to the clean–up of our two Superfund sites, including the Elizabeth Mine.

With that as a backdrop, Madam Administrator, I must tell you that I am disappointed at how vigorously this Administration has worked to undermine enforcement of the bipartisan Clean Air Act and the protection of American citizens’ health. The careful balancing required to protect public health has been dramatically unbalanced as special interests have been permitted to put their fingers on the scales.

I am referring to changes to the so-called New Source Review regulations that the EPA is on the verge of announcing.  After months of meetings with energy industry lobbyists, the Administration came up with a wish list of items for power companies -- and weakening New Source Review was at the top of their list.

From a cold financial perspective, its easy to see why power companies wanted a special interest provision that gave them immunity from a federal law. 

The New Source Review requires that the oldest and dirtiest power plants must comply with Clean Air Act requirements when significant upgrades are made to these facilities.  It was a core provision of the Clean Air Act that is supposed to gradually eliminate a loophole that permits power plants to emit thousands of tons of pollutants into our nation’s air and our citizen’s lungs. 

For many years, power companies ignored the requirement that their oldest plants eventually add controls which are required on all new plants.  Your immediate predecessor, Administrator Browner, made it a priority to enforce – not undermine -- the New Source Review regulations in the Clean Air Act. 

She diligently followed up on agency investigations that found energy companies illegally exploiting a loophole in Clean Air Act law that exempted certain plants from modern Clean Air Act standards.  She found those irresponsible power producers chose to put the money back into their growing profits rather than clean our air. 

Administrator Browner said enough was enough and brought the polluters to justice, joining with the Department of Justice in November of 1999 to file lawsuits against facilities with egregious violations.  It was not long after that that the polluters recognized they had been caught and started lining up at the settlement table. 

These settlements meant cleaning the air of millions of tons of pollutants.  These settlements also meant billions of dollars in fines would be paid back to the American people. 

Last year, one settlement alone resulted in over $1 billion in fines and a reduction of almost 200,000 tons of pollutants.  A more recent settlement had over $350 million in fines and 54,000 tons of pollutant reductions.

These lawsuits were fulfilling EPA’s mission to enforce the Clean Air Act and protect our resources.

The first major energy proposal by the Bush Administration was that the New Source Review enforcement should be undermined by an administrative death. 

And, lo and behold, two major energy companies who had previously announced “Agreements in Principle” to settle their New Source Review violations backed away from the settlement table. 

Those settlements would have reduced pollution by over 750,000 tons and returned more than $3 billion to our nation’s taxpayers.  Now the pollution is still spewing.  And those polluters aren’t paying for their crime.

Again, it is a matter of public record that energy companies wanted this relaxation of New Source Review -- many of whom were already under the gun from the EPA lawsuits.  

The fact that your Administration –and your EPA -- chose to even listen to, let alone actually act upon, those requests and roll back enforcement of the Clean Air Act baffles me.

 I and several of my Northeast colleagues questioned you about the rollback last year and expressed our concerns.  We explained to you that our states would sue and that you were jeopardizing our air quality. Yet you continued to follow the recommendations of the energy industry. 

In January, the Department of Justice found that all current New Source Review cases were legally justified and that the violators were right to be prosecuted.  Yet you continued to follow the request of the energy industry.  

Two weeks ago, one of your experts on Clean Air Act law and New Source Review regulation resigned in disgust at the handling of the matter at your agency. 

Yet on Monday I read in the Washington Post that you are continuing to follow the request of the energy industry.

I have heard you say that the Administration’s legislation to cut emissions from power plants – your “Clear Skies Initiative” – is the replacement for New Source Review.  We both know that is not true.  First, New Source Review is specific to individual facilities and it is mandatory.

The “Clear Skies Initiative” is about voluntary lowering of emissions throughout a region – it does nothing for the community stuck next to a 1950s coal-fired power plant spewing mercury and other pollutants from its stack. 

Furthermore, you and I also know that a relaxation of New Source Review regulation would cover far more than the 1,100 coal fired power plants that might be addressed in a “Clear Skies Initiative.” 

But New Source Review applies to more than 15,000 industrial facilities such as oil refineries, smelters, chemical manufacturing facilities, pulp and paper mills.  Do you have legislation for all of these facilities, too?

Finally, New Source Review exists in the Clean Air Act now.  It must be enforced NOW.   You and I both know that any multi-pollutant legislation will face months, if not years, of debate before passage.  Once passed, it will take years to implement. 

Your plans will leave American citizens without any real protections for years to come. 

Administrator Whitman, in your former work as the Governor of the Great Garden State of New Jersey you strongly supported the strongest Clean Air Act regulations, including enforcement of New Source Review.  Yet, today, you are following the request of the energy industry.  I wish I could understand why.