EPA Chief’s Remarks Stir Dispute at Senate Hearing

EPA Administrator Christie Whitman suggested Thursday that power plants sued for pollution violations might want to delay settling their cases until an appeals court rules on a federal utility’s challenge to her agency’s orders.

That type of advice, said Eric Schaeffer, the Environmental Protection Agency’s former director of civil enforcement, is why he resigned last week, protesting what he said was a White House determination to weaken clean air regulations.

Their dispute occurred during a confrontational Senate Governmental Affairs Committee hearing into the Bush administration’s environmental record.

The U.S. 11th Circuit Court of Appeals is considering a lawsuit filed in 2000 by the Tennessee Valley Authority challenging EPA orders toughening air pollution control requirements on older coal-fired power plants.

“If I were a plaintiff’s attorney, I wouldn’t settle anything until I knew what happened to that case,” Whitman testified. “We should be getting a decision sometime in April, and that will, I think, determine whether other companies come to the table.”

The EPA had said that the TVA violated the Clean Air Act for 20 years by making improvements at seven of its 11 coal-fired plants in Tennessee, Alabama and Kentucky without installing state-of-the-art pollution control equipment.

The authority said it has spent more than $2.5 billion to reduce pollutants from its plants, including a voluntary plan to spend more than $600 million on emission reductions.

It said meeting EPA’s order would require spending billions of dollars more and force its electric rates higher. It argues that the Clean Air Act exempts older plants from the state-of-the-art pollution requirements imposed in 1990.

Schaeffer told the committee after listening to Whitman testify that her comments would “send a clear signal” to utilities that they can afford to buck federal regulators trying to enforce the Clean Air Act at aging power plants.

EPA efforts to compel pollution cleanups are “threatened by a political attack on the enforcement process that I have never seen in 12 years at the agency,” he said, pointing to energy lobbyists working with the White House and the Energy Department.

“Not surprisingly, defendants have slipped away from the negotiating table one by one, and our momentum toward settling these cases has effectively stopped,” he said.

After the hearing, EPA spokesman Joe Martyak said Whitman had not meant to offer legal advice.

“Her point was simply that that was another example of the ebb and flow of legal cases that makes it difficult to predict outcomes,” he said. “Does that mean we aren’t going to pursue the TVA case? No, it doesn’t. Of course we are.”

Since 1998, the EPA has interpreted the law known as “new source review” as requiring old coal-burning power plants to install expensive new pollution controls to meet air quality standards when they upgrade facilities to produce more electricity. The utilities that have been sued have contended that work on their plants is more in the nature of maintenance than an upgrading.

In announcing his energy policy in May, however, President Bush directed the EPA and principal Cabinet members to consider rescinding the requirements after the plants’ owners complained they were too costly.

“The administration is not following a balanced environmental policy,” said the committee’s chairman, Sen. Joseph I. Lieberman (D-Conn.).

Sen. George Voinovich (R-Ohio) defended Bush as “trying to bring common sense and reasonableness to the debate.”

The White House distributed a 24-page statement on its environmental record at Thursday’s hearing.