November 6, 2003
The Honorable Orrin Hatch
Chairman
Senate Judiciary Committee
Washington, DC 20510
Dear Chairman Hatch:
Yesterday, the U.S. Environmental Protection
Agency (EPA) announced that they would stop pending enforcement
investigations against electric utilities and other industries that
violated the New Source Review (NSR) provision of the Clean Air
Act. This announcement contradicts testimony of Administration
officials before the Judiciary Committee last year. It also raises
serious questions about the ability of the Department of Justice
(DOJ) to take action against industrial facilities that violated the
law.
At that hearing in July of 2002, DOJ Assistant
Attorney General Sansonetti testified: “I might also note that in
the testimony that was given by EPA today, it says specifically that
the changes that they are making to the NSR program will be
prospective in nature. EPA will continue to vigorously pursue its
enforcement actions.” At the same hearing, EPA Assistant
Administrator Jeffrey Holmstead was directly asked about the impact
of the Administration’s proposed changes to NSR. He testified that
“based on conversations between our staffs, I have been informed by
our enforcement folks as well as by people in Mr. Sansonetti's
office that they do not believe these will have a negative impact on
the enforcement cases.” Since that testimony, EPA has insisted that
the NSR changes would only be prospective and would not diminish
existing enforcement actions or affect the investigation of past
violations.
There are currently 50 power plants,
refineries and other facilities that received a Notice of Violation
(NOV) under the NSR rules in effect before the August rulemaking of
this year. In addition, 13 cases have been referred from EPA to DOJ
for action and several cases in federal court now. There are also
several cases in federal court still awaiting action. These
enforcement actions could reduce hundreds of thousands of tons of
pollutants from getting into our environment and our lungs each
year.
In light of the far-reaching impact of these
actions, I respectfully request that the Committee hold a hearing on
the effects this decision will have on NSR enforcement cases in
federal court now and cases that have already been referred to the
Department of Justice from EPA. The hearing should also examine how
the Justice Department will handle NSR violations that occur in the
majority of states where the pre-August 2003 rules will be in effect
for another three years.
In addition, there have been some reports that
the Administration is backing away from these enforcement actions
because of funding shortfalls at the Justice Department. As part of
this Committee’s oversight responsibilities, I request that the
hearing also examine the current and proposed budget numbers for the
Environment and Natural Resources Division and the projected cost of
pursuing actions against companies that have violated the NSR
provisions of the Clean Air Act.
I look forward to working with you and other
Members of the Committee on this important issue.
Sincerely,
PATRICK LEAHY
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