EPA Official Backed Air Act Changes Despite Warnings

The top Environmental Protection Agency official charged with protecting air quality was warned repeatedly by staff that proposed changes to a Clean Air Act rule could undermine efforts to force certain power plants to add anti-pollution equipment, according to a report by the General Accounting Office.

Nonetheless, Jeffrey Holmstead, the assistant EPA administrator for air and radiation, told two congressional committees in July 2002 that the revisions the administration was considering would not hurt those efforts, which involved agency lawsuits against owners of 35 coal-fired power plants.

“What I can say is, based on numerous meetings that I have had, which have included staff attorneys from [the Justice Department] as well as attorneys from our own enforcement office, is we do not believe these changes will have a negative impact on the enforcement cases,” Holmstead told a joint hearing of the Senate Judiciary and Environment and Public Works committees.

But the GAO said in a report released Wednesday that EPA staff had told Holmstead otherwise in 2001 and 2002.

The staff cautioned that some of the proposed changes could induce defendants to delay cases and judges to decide that the utilities did not need to install anti-pollution devices, the GAO said. The GAO is the investigatory arm of Congress.

A memo sent to Holmstead in June 2002, by Sylvia K. Lowrance, then a principal deputy EPA administrator, warned proposed changes would “undermine” the cases, the report said. The report was made public by Sen. James M. Jeffords (I-Vt.), the ranking minority member of the Senate Environment and Public Works Committee.

As a result of the report, Jeffords and Sens. Patrick J. Leahy (D-Vt.) and Joe Lieberman (D-Conn.) this week asked the EPA inspector general to investigate whether Holmstead misled Congress and “intentionally undermined” the lawsuits against the plants.

Holmstead was traveling Thursday and could not be reached for comment, but Lisa Harrison, an EPA spokeswoman, said it was “misleading to say he misled Congress.”

The EPA lawsuits were filed under the “new source review” provisions of the Clean Air Act, which require major polluters to install modern pollution controls when modifying their equipment in ways that increase pollution.

An exception exists, however, for changes to plants that are considered “routine maintenance.” Holmstead’s disputed comments to Congress came when the Bush administration was deciding whether to expand the definition of “routine maintenance.” In August, the administration announced its final decision to broaden the exception.

Under the new policy, routine maintenance includes any project that costs less than 20% of the replacement price of the polluting unit. A senior EPA official told the GAO that under the new definition, companies could avoid installing new anti-pollution equipment even while making changes to their plants “that are much more substantial than any of those in dispute” in the EPA lawsuits.

Environmental groups and congressional Democrats say the new policy will undermine the seven ongoing lawsuits, most of them filed by the Clinton administration, that accuse the owners of 35 coal-fired electric power plants of illegally emitting millions of tons of pollution.

In its report, the GAO concluded that the Bush administration’s new policy may deter judges from forcing power companies that violated the old rule to install pollution controls, and it “also likely will discourage utilities from settling at least some of the remaining cases.”

The EPA and the Justice Department say they continue to vigorously pursue the cases. EPA officials said that because the revisions affect only future violations, companies that broke the old law should be held accountable in the existing cases.