<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:83689.wais]
S. Hrg. 107-956
ENVIRONMENTAL ENFORCEMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK, AND WASTE MANAGEMENT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MARCH 12, 2002
__________
Printed for the use of the Committee on Environment and Public Works
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_______________________________________________________________________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred seventh congress
second session
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey BEN NIGHTHORSE CAMPBELL, Colorado
Ken Connolly, Democratic Staff Director
Dave Conover, Republican Staff Director
------
Subcommittee on Superfund, Toxics, Risk, and Waste Management
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana LINCOLN CHAFEE, Rhode Island
RON WYDEN, Oregon JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware JAMES M. INHOFE, Oklahoma
HILLARY RODHAM CLINTON, New York MICHAEL D. CRAPO, Idaho
JON S. CORZINE, New Jersey ARLEN SPECTER, Pennsylvania
C O N T E N T S
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Page
MARCH 12, 2002
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey.. 8
Inhofe, Hon. James M. Inhofe, U.S. Senator from the State of
Oklahoma....................................................... 4
WITNESSES
Johnson, Barry L., adjunct professor, Rollins School of Public
Health, Emory University....................................... 13
Prepared statement........................................... 50
Responses to additional questions from Senator Smith......... 53
Schaeffer, Eric, consultant, Rockefeller Family Fund............. 9
Prepared statement........................................... 31
Segal, Scott, partner, Bracewell & Patterson, LLP................ 15
Prepared statement........................................... 33
ADDITIONAL MATERIAL
Charts:
Cuts in EPA Enforcement Staff Levels......................... 21
Negative Trends in Environmental Enforcement at EPA.......... 22
Letter, Resignation of Eric Schaeffer, Director, Office of
Regulatory Enforcement, Environmental Protection Agency........ 3
Statement, International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL-CIO............ 50
Summaries:
Electric Reliability Coordinating Council, White Paper on
Clarification of New Source Review......................... 37
The True Nature of Repair and Replacement.................... 40
ENVIRONMENTAL ENFORCEMENT
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TUESDAY, MARCH 12, 2002
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Toxics, Risk, and Waste
Management,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:03 a.m. in
room 406, Senate Dirksen Building, Hon. Barbara Boxer (chairman
of the subcommittee) presiding.
Present: Senators Boxer, Inhofe and Corzine.
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. I will call the committee to order.
I would ask all of you on the first panel to please take
your seats here, because what we are going to try to do is a
very seamless hearing. We have only one panel. Senator Inhofe
and I will make our opening statements. If any other colleagues
come, they will do that as well.
What we are going to try to do because we are really
looking at one basic issue--the issue of enforcement--and I
think we may be able to complete this before the vote is
completed on the floor, which I understand is going to start at
11 a.m., which is helpful, from 10:45 a.m., I think.
So anyway, it looks like we should be able to move quickly
and get all the information we need.
Today, the Superfund, Toxics, Risk and Waste Control
Subcommittee will hear about the state of environmental
enforcement at the EPA and what might be in the works for
environmental enforcement in the future.
I want to make it very clear that we invited Administrator
Whitman to be here, or anyone that she would send, and they
declined.
I am also very grateful to Senator Chafee, who is the
ranking member of the subcommittee, for his support on holding
this hearing.
The body of scientific evidence supporting the need for
quick and effective action to reduce our communities' exposure
to pollution continues to grow. Given the central role
enforcement plays in public health protection, any change in
policy on environmental enforcement requires close scrutiny. I
think what I am about to say now is key to the whole debate.
There are a number of ways environmental protections can be
rolled back. One very straightforward way is to change the law.
The process of changing the law is a public process.
Stakeholders make their case. Issues go through committee.
Votes are taken. When efforts are made to change a law, the
process is transparent.
However, there is a more subtle way that environmental
protections can be rolled back. Cuts in personnel and cuts in
pollution control targets can also result in less environmental
enforcement. The difference is that this approach is not so
public. No vote is taken on the change of plans. There is much
less transparency. It is harder to hold those responsible for
the rollbacks accountable. Is it any wonder which course this
Administration is following? Not to me.
We are here today to shine a bright light on what is
happening to environmental enforcement at the EPA and what the
Bush administration plan seems to be for the future of
environmental enforcement.
EPA's own documents paint a disturbing picture about the
Administration's plans for environmental enforcement. First,
let's take a look at environmental enforcement resources. This
chart comes from EPA's own operating plan and budget request.
This is from an internal document that EPA has so far refused
to share with us. We have gotten it through other sources. This
document shows that between fiscal year 2001 and 2003, there is
an 18 percent cut in the staff resources that can be devoted to
inspections, and an 11 percent cut in civil enforcement.
Let us also take a look at EPA's projections for
accomplishments in environmental enforcement from 2001 to 2003.
Again, using EPA's own budget numbers, there are substantial
declines in enforcement. This Administration's plan is to
significantly reduce inspections, and the blue is 1901, the red
is 1902 and the yellow is 1903. So the plan is to significantly
reduce inspections, civil investigations, and voluntary
disclosures.
There is even a plan to reduce the amount of pollution
taken out of our air, our water and our soil. This
Administration's approach to rolling back environmental
protection through hidden plans to undermine enforcement may
not be as transparent as changing the law, but it is just as
dangerous for the American people.
Again, I am very sorry that EPA is not here today, but we
will certainly accommodate them if they would like to have an
opportunity to answer what I am saying today and what other
colleagues might say, and of course we stand ready to continue
this hearing at that time.
We are very fortunate today to have Eric Schaeffer here to
discuss EPA enforcement with us. Until quite recently, Mr.
Schaeffer was the Director of Regulatory Enforcement at the
EPA. It is my understanding he came to the Federal Government
with the other George Bush. Is that correct, Mr. Schaeffer? He
was responsible for a wide range of enforcement areas,
including air, water, pesticides, toxics, and hazardous waste.
He resigned from EPA and has expressed great concern about the
future of enforcement.
At this time, I would like to submit his letter of
resignation for the record, and I of course welcome him.
Without objection, we will do that.
[The referenced document follows:]
Christine Whitman, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
Dear Ms. Whitman: I resign today from the Environmental Protection
Agency after 12 years of service, the last 5 as Director of the Office
of Regulatory Enforcement. I am grateful for the opportunities I have
been given, and leave with a deep admiration for the men and women of
EPA who dedicate their lives to protecting the environment and the
public health. Their faith in the Agency's mission is an inspiring
example to those who still believe that government should stand for the
public interest.
But I cannot leave without sharing my frustration about the fate of
our enforcement actions against power companies that have violated the
Clean Air Act. Between November 1999 and December 2000, EPA filed
lawsuits against nine power companies for expanding their plants,
without obtaining New Source Review permits and the up to date
pollution controls required by law. The companies named in our lawsuits
emit an incredible 5.0 million tons of sulfur dioxide every year (a
quarter of the emissions in the entire country) as well as 2 million
tons of nitrogen oxide.
As the scale of pollution from these coal-fired smokestacks is
immense, so is the damage to public health. Data supplied to the Senate
Environment Committee by EPA last year estimate the annual health bill
from 7 million tons of SO<INF>2</INF> and NO<INF>2</INF>: more than
10,800 premature deaths; at least 5,400 incidents of chronic
bronchitis; more than 5,100 hospital emergency visits; and over 1.5
million lost work days. Add to that severe damage to our natural
resources, as acid rain attacks soils and plants, and deposits nitrogen
in the Chesapeake Bay and other critical bodies of water.
Fifteen months ago, it looked as though our lawsuits were going to
shrink these dismal statistics, when EPA publicly announced agreements
with Cinergy and Vepco to reduce SOx and NOx emissions by a combined
750,000 tons per year. Settlements already lodged with two other
companies--TECO and PSE&G--will eventually take another quarter million
tons of NOx and SOx out of the air annually. If we get similar results
from the nine companies with filed complaints, we are on track to
reduce both pollutants by a combined 4.8 million tons per year. And
that does not count the hundreds of thousands of additional tons that
can be obtained from other companies with whom we have been
negotiating.
Yet today, we seem about the snatch defeat from the jaws of
victory. We are in the 9<SUP>th</SUP> month of a ``90-day review'' to
reexamine the law, and fighting a White House that seems determined to
weaken the rules we are trying to enforce. It is hard to know which is
worse, the endless delay or the repeated leaks by energy industry
lobbyists of draft rule changes that would undermine lawsuits already
filed. At their heart, these proposals would turn narrow exemptions
into larger loopholes that would allow old ``grandfathered'' plants to
be continually rebuilt (and emissions to increase) without modern
pollution controls.
Our negotiating position is weakened further by the
Administration's budget proposal to cut the civil enforcement program
by more than 200 staff positions below the 2001 level. Already, we are
unable to fill key staff positions, not only in air enforcement, but in
other critical programs, and the proposed budget cuts would leave us
desperately short of the resources needed to deal with the large,
sophisticated corporate defendants we face. And it is completely
unrealistic to expect underfunded state environmental programs, facing
their own budget cuts, to take up the slack.
It is no longer possible to pretend that the ongoing debate with
the White House and Department of Energy is not effecting our ability
to negotiate settlements. Cinergy and Vepco have refused to sign the
consent decrees they agreed to 15 months ago, hedging their bets while
waiting for the Administration's Clean Air Act reform proposals. Other
companies with whom we were close to settlement have walked away from
the table. The momentum we obtained with agreements announced earlier
has stopped, and we have filed no new lawsuits against utility
companies since this Administration took office. We obviously cannot
settle cases with defendants who think we are still rewriting the law.
The arguments against sustaining our enforcement actions don't hold
up to scrutiny.
Were the complaints filed by the U.S. Government based on
conflicting or changing interpretations? The Justice Department doesn't
think so. Its review of our enforcement actions found EPA's
interpretation of the law to be reasonable and consistent. While the
Justice Department has gamely insisted it will continue to prosecute
existing cases, the confusion over where EPA is going with New Source
Review has made settlement almost impossible, and protracted litigation
inevitable.
What about the energy crisis? It stubbornly refuses to materialize,
as experts predict a glut of power plants in some areas of the United
States. In any case, our settlements are flexible enough to provide for
cleaner air while protecting consumers from rate shock.
The relative costs and benefits? EPA's regulatory impact analyses,
reviewed by OMB, quantify health and environmental benefits of $7,300
per ton of SO<INF>2</INF> reduced at a cost of less than $1,000 per
ton. These cases should be supported by anyone who thinks cost-benefit
analysis is a serious tool for decisionmaking, not a political game.
Is the law too complicated to understand? Most of the projects our
cases targeted involved big expansion projects that pushed emission
increases many times over the limits allowed by law.
Should we try to fix the problem by passing a new law? Assuming the
Administration's bill survives a legislative odyssey in today's evenly
divided Congress, it will send us right back where we started with new
rules to write, which will then be delayed by industry challenges, and
with fewer emissions reductions than we can get by enforcing today's
law.
I believe you share the concerns I have expressed, and wish you
well in your efforts to persuade the Administration to put our
enforcement actions back on course. Teddy Roosevelt, a Republican and
our greatest environmental President, said, ``Compliance with the law
is demanded as a right, not asked as a favor.'' By showing that
powerful utility interests are not exempt from that principle, you will
prove to EPA's staff that their faith in the Agency's mission is not in
vain. And you will leave the American public with an environmental
victory that will be felt for generations to come.
Sincerely,
Eric V. Schaeffer, Director,
Office of Regulatory Enforcement.
Senator Boxer. We will also hear from Dr. Barry Johnson. He
is an experienced scientist and will share some of the latest
research on the impacts of pollution on the public. We will
hear from Mr. Scott Segal, a partner in a law firm that defends
environmental enforcement cases.
Now, we are going to continue with our opening statements.
It is my pleasure to introduce Senator Inhofe, and of course to
welcome Senator Corzine, who will immediately follow Senator
Inhofe.
Senator Inhofe, welcome.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Madam Chairman.
I will share with them the bad news and good news I gave to
you on the train over from the Capitol. The bad news is I have
a 1-hour opening statement, but the good news I have about a 3-
minute voice.
[Laughter.]
Senator Boxer. Well, we will be happy to put the entire
statement into the record.
Senator Inhofe. In a report entitled, U.S. Downstream: The
EPA Takes Another Bite Out of America's Fuel Supply, Merrill
Lynch concluded that EPA's clean air regulations, ``will
clearly have the impact of reducing existing U.S. refinery
capacity.'' The reduction in refining capacity predicted by
Merrill Lynch is the result of poorly thought out and
implemented regulations. The solution to the high prices is not
found in the cheap political gimmicks like releasing oil from
the Strategic Petroleum Reserve. Rather, the solution relies on
a national energy policy, including highly effective, but
streamlined environmental regulations.
I have to say, Madam Chairman, that what I am saying now is
not a partisan thing because we tried way back during the
Reagan administration, at that time I was working in the House,
I believe you were too, to get them to have a national energy
policy, and they did not do it. I thought surely when George
the First came in from the oil fields, he would want to have
one, and he did not want one either. The Clinton administration
did not.
But now we have an Administration that is really willing to
work out something that is a national energy policy, the
cornerstone of which is going to lessen our dependence upon
foreign countries for our ability to have energy. I sometimes
on the Senate floor talk about this 57 percent dependency that
we have on foreign countries, and the most rapidly increasing
contributor to that is the country of Iraq. So, the bottom line
is it is ludicrous that we should be dependent upon Iraq for
our ability to fight a war against Iraq.
It is a very serious thing, Madam Chairman. I think that
when well thought out and reflecting consensus, environmental
regulations can certainly provide benefits to the American
people. But when regulations are placed into effect without
adequate thought, they are likely to do more harm than good.
Poorly designed environmental regulations are and will continue
to be a large contributor to our energy policy and our energy
problems.
Now, we have an Administration that has said we are going
to have an energy policy. That takes into consideration all
these things that we are talking about this morning.
So we as a Nation need to re-think the manner in which we
approach regulation. We all need to keep an open mind during
the debates on various regulatory reform initiatives. I was
very disheartened to hear that these were, ``sneak attacks on
the environment.'' In fact, it is just the opposite. If we re-
think regulation, we can be in a better position in the future.
We could find ourselves in a place where we can have far
greater environmental protection and more reliable and diverse
energy sources.
I had a chart that I was wanting to show at this point, and
I guess they did not show up with it, but it was on price
spikes and how much the American people have to pay for
increased fuel. So I would like to have that entered at this
point in the record, even though I do not have it here.
Senator Boxer. Without objection, so ordered.
Senator Inhofe. Congress and the executive branch must do a
better job of understanding how these various layers of
regulations impact sectors of the economy and of industry. For
example, refineries, who are currently working at 100 percent
capacity, are going to be simultaneously hit with a number of
regulations in the next few years, such as the tier two and
sulfur diesel rules. Now is the time to work together on these
and other regulations to not only achieve the environmental
goals, but also ensure no disruption in fuel supply, which
would cause price spikes as we showed several times to this
committee.
There is no better example of a poorly designed regulation
than New Source Review. I can remember when I was chairing the
Clean Air Subcommittee--Senator Corzine, before the Democrats
became the majority, we had a hearing in the State of Ohio. We
had people testifying and one came in with a 12-inch pipe that
had to be changed. That particular pipe set off the New Source
Review, a very expensive process. This is at a time when we are
already at 100 percent refinery capacity.
As many of you know, last year Senator Breaux and I sent
the original letter to Vice President Cheney in his capacity as
Chairman of the National Energy Policy Development Group, the
EPA's New Source Review enforcement, flawed and confusing
policies will continue to interfere with our Nation's ability
to meet our energy and fuel supply needs.
We strongly urged that the Administration take into account
these concerns in developing its national energy policy. New
Source Review is a 20-page regulation which needs more than
4,000 pages of guidance documents to explain it. I have to say,
Madam Chairman, that I consider this to be a violation. This
took place without hearings, without input into these 4,000
pages of documents to explain 20 pages, and nobody still seems
to understand it.
In addition to no hearings being confusing, I think that
New Source Review is a classic example of regulation through
guidance in violation of the Administrative Procedures Act. I
would like to ask that the letter that was sent by Senator John
Breaux and myself be entered into the record following my
remarks.
Senator Boxer. Without objection, so ordered.
Senator Inhofe. From my tenure as Chairman of the Senate's
Clean Air Subcommittee, I knew that New Source Review was a
major issue for the energy sector. However, as a result of my
letter, a number of companies from all over the country have
contacted me to discuss their experience with the New Source
Review program.
What is worse is that under the New Source Review
enforcement initiative, I saw examples of massive information
requests from the Federal Government to companies which were,
at the very least, dubious and more likely illegal. There were
examples of information requests submitted to companies by the
EPA employees without any official authorization. In some
cases, EPA employees were driving around just handing these
requests out like fliers. There were other information requests
in the form of photocopied documents with the name of one
facility scratched out, and the name of another facility
penciled in.
There were also requests which were addressed to one
facility, but referred to operating units of another facility
halfway across the country. In other cases, attachments were
cited, but not provided. These attachments are absolutely
essential for companies to comply with such a request. They
cannot comply with the request without the attachments.
Additionally, there were requests for information that had
already been produced by companies. While the EPA sent me a
lengthy response to my questions on these cases of abuse of
power, EPA bureaucrats never produced their homemade
information requests. I would like to submit my letter
following the Breaux letter for the record, making the request
to the EPA.
Senator Boxer. Without objection, so ordered.
Senator Inhofe. I fully support the strong enforcement of
our Nation's clean air laws, but I will not stand by to watch
some Federal employees use these tactics to serve their
agendas, nor should the White House. As a former businessman, I
personally dealt with similar behavior from my government, and
that was one of my motivating factors to seek public office. I
had to ask myself--I was out building companies and hiring
people and expanding the tax base--doing all these things. Yet
the chief obstacles that we continuously had came from the
Federal Government.
Now, many of the environmentalist community and Mr.
Schaeffer call this review a sneak attack on clean air laws,
and claim that politics have entered the enforcement of our
laws. They know better. I know that Mr. Schaeffer has now left.
He has resigned and he has taken a position with a liberal
think tank that funds the NRDC and other companies like that.
Mr. Schaeffer, I think this shows what your personal agenda was
and probably was not consistent with that of the current
Administration.
President Bush cannot be expected to place layer after
layer of regulations without any consideration of their energy
implications. This is important. The extremist environmental
community does not have to answer to the American people when
energy prices go through the roof. They should have to, but
they do not have to. They do not have to worry about the
national security implications of greater dependency on foreign
energy sources. But the President and we in the Congress do
have to worry about that. There should be no time in our
Nation's history when we should be more aware of the problems
that are out there in relationship to our dependency on foreign
sources for our ability to fight a war than today, since we are
out in the middle of two major wars.
As a Senator and grandfather, I want to ensure the cleanest
environment for our Nation. However, I am convinced that
environmental regulations can be harmonized with energy policy.
I hope we will be able to accomplish that, Madam Chairman.
Senator Boxer. Thank you so much. In the interests of
collegiality, I really do have this very good throat lozenge
for you.
Senator Inhofe. Oh, thank you. You notice she waited until
after my statement to give it to me.
[Laughter.]
Senator Boxer. I waited until you yielded back the rest of
your time, but we are really glad that you are here presenting
your view.
I want to make sure that I can hold the record open in time
to put into it the California experience in this last energy
crisis where we did build a number of power plants and we used
the new rules and we were able to do that without any
deterioration in air quality. So without objection, I am going
to keep the record open for that. I am going to say to my
colleague, I agree that we should enforce these laws, and it is
just going to be awful difficult to do it when you see these
cuts in staff levels, which is not the issue you addressed. You
really addressed the underlying laws, but I wanted to point out
this is something I hope we can perhaps work together on
because it is discouraging to see this. The internal documents
show that we are really going to cut in half the amount of
pollutants taken out of the air. Pollution reduction will be
essentially cut in half, and that is very troublesome to this
Senator, in any case.
Senator Corzine, we welcome you. Please feel free to make
an opening statement.
OPENING STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Senator Corzine. Thank you, Madam Chairman.
That cut of half of the pollutants in the air is also
troubling to me.
I appreciate your holding a hearing on the enforcement of
our Nation's environmental laws, and I welcome the witnesses
and appreciate your spending the time with us.
I think we all recognize that there has been great progress
over the last three decades in cleaning up our environment. For
example, Mr. Segal's testimony discusses the great strides we
have made in improving air quality since the 1970's. Carbon
monoxide levels are down 28 percent; sulfur dioxide levels down
39 percent. These types of gains really cannot be minimized,
and there is more ahead if we do the right things. I hope we do
not snatch defeat from the jaws of victory, as our witness Mr.
Schaeffer wrote in his letter, because many problems really do
continue.
In my State of New Jersey, every county has violations of
the ozone standard. Many of those are a function, by the way,
of power plants in States to the west and south where we are
downwind from. In addition, New Jersey has 111 sites on the
Superfund national priorities list, the most in any State in
the Nation, and 5 more sites proposed for listing. Believe me,
my constituents ask what we are doing about that and whether we
are making progress on cleaning up and moving forward in
enforcing polluter-pay principles.
These are examples of the types of environmental problems
that can only be addressed effectively by a strong Federal
enforcement effort. You do not have to look beyond today's Wall
Street Journal to see that we are not getting the job done on
enforcement. Today's Journal contains a story on a draft EPA
inspector general study that is reported to show that only 63
percent of the 19,025 major sources of air pollution in this
country have the permits that they were required to obtain in
1997. Madam Chairman, I would ask that the Wall Street Journal
article be submitted to the record.
Senator Boxer. Without objection, so ordered.
Senator Corzine. I am disturbed by the approach that the
current Administration is taking on enforcement as outlined by
the Chairman. Again, the President's budget proposes EPA
enforcement cuts. Congress not only rejected similar cuts that
were proposed last year, but rather directed EPA to hire more
enforcement personnel to get back to fiscal year 2001 levels.
It did not happen. Instead, the President has again proposed
enforcement cuts--cuts that would take EPA personnel levels to
approximately 200 positions below fiscal year 2001 levels.
We have an Administration that is de-emphasizing
enforcement in their budget. It is how they do business. EPA's
operating plan shows that the Administration plans for 14,000
facility inspections in fiscal year 2003, as opposed to the
more than 20,000 inspections completed annually in fiscal year
2000 and fiscal year 1999. Similar decreases are planned for
civil investigations. I think the Chairman has outlined that.
As Mr. Schaeffer's testimony points out, there are real
environmental consequences from reducing enforcement. I think
his resignation from the EPA over enforcement of the New Source
Review provisions of the Clean Air Act shows that the
Administration is giving favor to polluters over people when it
comes to enforcement.
You know, in New Jersey we have actually had several of our
power companies, two different ones, actually cleanup plants
and meet New Source Review standards. They paid the price, but
I think they feel that they will get both economic benefit and
they certainly will provide the public with a better state of
our air quality in New Jersey, and we are proud of them for
their efforts.
I hope we can move forward. One of the unfortunate aspects
of the enforcement of New Source Review is that we will not be
seeing that happen in other places if we do not get moving.
I would respectfully point out to Administrator Whitman,
while she has been advising or has public said she advises
companies not to settle with the government with regard to New
Source Review, I would hope that she would stand back from
being a power plant attorney and work on fulfilling the
responsibilities of enforcing the law at EPA.
I hope that we can have a good discussion of this. I think
it is important that these issues are aired. I think that there
are some legitimate concerns about the detail of some of the
regulation, but that in no way, in my mind, pushes this away
from actually dealing with New Source Review and cleaning up
our air. We need the enforcement facilities to do it. I
appreciate the witnesses today.
Thank you, Madam Chairman.
Senator Boxer. Thank you so much, Senator.
Now, I am going to ask Mr. Schaeffer to give his opening
statement. At this time, he is a consultant to the Rockefeller
Family Fund. He is the former Director of the Office of
Regulatory Enforcement, the U.S. EPA.
I have to say, Mr. Schaeffer, by the way, my own personal
view when I saw your letter, I was very moved because I thought
this was a painful thing for you to have to do. I just want to
commend you for saying what is in your heart and putting it on
paper and being willing to come here today. I am very grateful.
Please, let's begin with you.
STATEMENT OF ERIC SCHAEFFER, CONSULTANT, ROCKEFELLER FAMILY
FUND
Mr. Schaeffer. Thank you, Madam Chair, and Senators.
I appreciate the opportunity to testify today. I am
grateful for your attention to what I think is an important
issue.
If I could, as to leaving because I disagreed with the
Administration's environmental enforcement policy, I plead
guilty to that. I think that is laid out in my letter. As to my
personal or private agenda, I feel compelled to say that I have
worked for Republicans, I have worked for Democrats. Last year,
I got the John Marshall Award from Attorney General Ashcroft
for my work on refineries. I was very proud of that. So this is
just not a partisan issue for me and I hope it will not become
one.
If I could just briefly summarize my statement. I know you
have others you want to hear from. I am going to make three
points. First, the budget cuts are real and they are happening.
They have happened and they are happening in the 2003 proposal.
There seems to be confusion about that, and I appreciate your
efforts to clear that up.
Second, that is going to affect our ability to protect the
environment through enforcement actions. These cuts are not
free. There is not a free lunch here. This is going to affect
our ability to do our job.
Finally, this is not a problem we can dump on the States,
as has been suggested. I think you may hear that directly from
the States themselves.
Just going first to the issue of what about these budget
cuts, I think you have laid both the environmental impacts and
the reductions in personnel out. I will just add two points to
that. One is these are real reductions in people. They are
accomplished by not replacing experts as they leave the Agency,
no matter how valuable their expertise is. I think that in time
it will be accomplished by shifting people to other functions.
I take issue with the suggestion that these are somehow
being absorbed by eliminating phantom employees who never
existed. I can tell you that is not true. I invite you to look
at that very closely. Any collection of accountants, the
General Accounting Office or the IG I think can confirm for
you. I would just ask, if you had committee staff leaving and
were not replacing them, would you consider that a reduction? I
think you probably would feel that after a while, and that is
the same thing that is happening to us.
The second point I want to make is we also have a contract
budget. It is very important to us. It provides all the
inspections for the Mobile Source Program. We do not have
enough Federal employees to do those inspections. It provides
us with lab and field work for cases. It helps to pay for
expert witnesses. It helps us to manage documents. We are in
desperate need of those resources.
I must say, I came from a private law firm, like the one
Mr. Segal is from, and we are very envious of the resources
they have when we get to litigation. We are very short in the
government. We need those contract dollars. They are cut 20
percent between 2001 and 2003. If you look at the 2003 contract
budget for enforcement, it is less than half what it was about
5 or 6 years ago. Again, that is easily confirmed, so we are
really getting shorted when it comes to resources.
Now, you might say that is a good thing. We do not need
Federal environmental enforcement. I would disagree, but you
should have the facts to decide whether you think that is a
good thing. You should know what is happening and I am glad you
are looking at it.
I have listed in my statement some issues I brought to
management a couple of years ago about what a shrinking
enforcement budget was doing to us. I am not going to read them
all. They are in the testimony. I will just pick a couple of
examples. We were unable to respond in the way we wanted to to
desperate pleas for help from Region 9, investigating the MTBE
problem in Santa Monica--as bad a problem as you will ever find
environmentally. We gave them a little bit of contract support,
not nearly what they needed and asked for.
We had the same problem with the Southdown Quarry in New
Jersey. In that case, we had tremolite asbestos, an
investigation the State desperately wanted help with. We were
just not able to provide the funds that were requested. We
provided a little help, but not nearly what was asked for. I
invite you to look at that.
I am not saying the Agency did not patch together a
solution. We tried to do our best, but we were not able to
respond in the way we wanted to.
You might say, and I have heard some say, it does not
matter. We can rely on self-policing. We can rely on self-
auditing. Companies are better than they were 25 years ago.
They have internalized environmental values. Enforcement is
adversarial. It is outmoded. We do not need it anymore.
I guess I would start by saying, we would not get
compliance without the hard work of most companies who spend a
lot of resources to try to stay in compliance with the law.
There would be no Clean Air Act. There were would be no Clean
Water Act without those efforts.
So we appreciate them. We have made it easier, I think much
easier for companies to find those problems, step forward and
identify them, and fix them. We have an audit program that
virtually eliminates penalties for companies that take that
step. It was developed through the American Bar Association,
with lots of input from defense counsel. We have even had the
Washington Legal Foundation say it works pretty well. I have
that framed somewhere since they hardly ever agree with us on
anything.
If you think that we can rely just on self-policing and do
away with enforcement entirely, I think Enron is a good example
of what can go wrong when you turn the job of compliance
completely over to companies and you rely on a system of self-
regulation. I do not think we have come that far.
What does this all mean for the environment? You have the
Administration's projections I think unabashedly saying we are
going to see less environmental protection as a result of these
cuts. Let me give you several examples from recent cases.
Senator Corzine mentioned ozone nonattainment. Three years ago,
we settled cases against nine diesel manufacturers. These are
manufacturers of diesel truck engines. Together, those
settlements take over one million tons of nitrogen oxide a year
out of the air. These are cases where the companies were
cheating, to put it bluntly, by wiring their computers in these
trucks to turn off emission control devices. The result was
more NOx. We were able to recover over one million tons of NOx.
If those settlements do not thrive, if they are not enforced,
if we do not see that the promises in those settlements are
carried through, we are going to have a lot of States that are
not going to meet air quality standards. If you think this
issue does not matter to States, you can talk to Bill Becker at
the State Air Pollution Administration. They are very, very
concerned about the settlement.
Senator Corzine mentioned refining. Last year, we settled
cases with over one-third, actually about one-third of the U.S.
refining industry. I am talking about capacity. These
settlements will take 150,000 tons of sulfur dioxide and
nitrogen oxide out of the air. One of those companies in a
recent news report said, one of their spokesman said, ``We
settled because we expected the law to be enforced against our
competitors. If that is not going to happen, and we are left
holding these costs by ourselves, then that is unfair. We
expect a level playing field.'' That comes from the company,
not from EPA.
I just want to add on the issue of interfering with the
ability to make gasoline available to consumers at a reasonable
price, ask the companies that settled. We have a third of the
industry under settlement. I think they will tell you they can
do the job. They can meet clean air requirements. The
settlements are flexible. They are practical and get them into
compliance with the law.
One more point I cannot resist making, the economy changes
the kinds of environmental problems we have to deal with. A
decade ago, we did not have corporate hog farming on the scale
that we see today. Now, you have 10 companies that together
control more than half the pork production in the United
States. Some of their facilities are enormous. We have one in
the Midwest that produces more waste water than the entire city
of St. Louis. That is without primary treatment, never mind
secondary treatment.
For those that think enforcement is done, I would invite
you to come out on a hot summer night in one of those
Midwestern States and stand downwind from one of those
operations, and talk to the neighbors about how we are going to
rely on voluntary programs to fix that problem. That would be a
very interesting meeting. It would be a lively meeting.
On the issue of EPA v. the States, which I think is an
artificial conflict, I do not think you will see States and I
do not think you will see States asking for cuts in the Federal
enforcement program, which leads me to ask, who is asking for
these cuts? The Administration is having trouble explaining
them or even providing numbers. It is not coming from the
States. I just direct your attention to a letter sent to
Senator Jeffords by the Environmental Council of States
representing State Commissioners. It says, in brief, States
need more money to do environmental enforcement. That is true,
but we did not ask you to cut the Federal enforcement program.
In the letter they recognize EPA enforcement does different
things. EPA is not the 51st State. We deal with a unique set of
problems. We look at multi-State actors. We look at interstate
transfer of pollutants. We deal with some big, tough polluters
that are beyond the reach of some State programs.
We do this together with States. I will just give you one
statistic. In the settlements we had last year, we gave $25
million in penalties to State programs. These are States that
came into partnership with us and did the cases. They got $25
million as part of the settlement. That is almost twice what
the Administration is proposing to give to States in the budget
this year. So we can work with States. We have been working
with States. I do not think they want the Federal enforcement
program cut.
In the end, I really do not think this is about who does
enforcement. I think it is about whether these environmental
laws will be enforced at all. I welcome your attention to that.
I do not think that question can be taken for granted. I would
be pleased to answer any questions.
Senator Boxer. Thank you very much. We will put all of your
entire statements in the record. I appreciate that you spoke
just from the heart because I think it is effective to do that.
You certainly know your territory.
Our next speaker will be Dr. Barry Johnson, who represents
the Environment and Health Program at the Physicians for Social
Responsibility. He previously served as Assistant Surgeon
General and Assistant Administrator at the Agency for Toxic
Substances and Disease Registry at the Public Health Service.
Is that correct?
Dr. Johnson. This is correct.
Senator Boxer. Was that also under the first George Bush?
Dr. Johnson. Yes.
Senator Boxer. Yes. Dr. Johnson has worked for several
decades in several senior government positions, on the impacts
of toxics on human health.
Before you begin, I just want to answer one point Mr.
Schaeffer made about the fact that he hopes this will not
become a partisan issue. So do I, because if it does, the
environment loses. Just because I have to say I thanked Senator
Chafee at the beginning of this, because Lincoln Chafee agreed
that we could have this hearing. This hearing could have been
held up for another week, but he agreed. So I want to again
thank him. I also remember his father with great fondness
because without him, we would not have had a lot of the
landmark laws that we want to enforce.
So, in my view, environment has never been a partisan
issue. In my own State, it brings people together--75-80
percent of the people asked say they are environmentalists, no
matter whether they are Democrats, Republicans, Independents.
They will cross-over vote, as you did Mr. Schaeffer in your own
life. People will cross-over vote, in many cases depending on a
candidate's stand on the environment. I can tell you that. In
my State, it is absolutely a truism.
So I hope you do not feel in any way defensive about
anything or the position you find yourself in. This hearing was
called by myself and Senator Chafee. A fight for a clean
environment is not a partisan fight.
So Dr. Johnson, with that, we welcome you. What I hope you
will address is real-life consequences of non-enforcing our
environmental laws. I hope that you will do that, and I welcome
you. Please begin.
STATEMENT OF BARRY L. JOHNSON, ADJUNCT PROFESSOR, ROLLINS
SCHOOL OF PUBLIC HEALTH, EMORY UNIVERSITY
Dr. Johnson. Thank you.
I am Barry Johnson representing the Environmental and
Health Program, Physicians for Social Responsibility. PSR has
had a longstanding concern about hazards in the environment and
the importance of physician education about them. We welcome
the opportunity to brief the subcommittee on matters of
environmental health.
My purpose today is to update you on recent research
findings from several sources. The findings, PSR believes, are
of great import to the public's health and support the need for
greater action by government, private industry and
nongovernment organizations to reduce the pollution load
experienced by the American public.
In previous testimonies to Congress, I noted that the body
of published epidemiological research points to increased
reproductive disorders in children born to parents who resided
near Superfund and similar hazardous waste sites. The overall
pattern of reproductive disorders included birth defects of the
heart, neural tubes and oral cleft palate. Reduced birth rate
has been reported in several studies. Similarly, British
investigators using data from registers from congenital
anomalies in five European countries have reported quite
similar findings.
Since 1999, British investigators have reported small
excess risk of congenital anomalies and low and very low birth
rates in populations living near landfill sites operating in
Great Britain. In a different investigation, European
investigators recently reported an increase in chromosomal
anomalies in persons living close to hazardous landfills. The
gravity of the adverse reproductive outcomes from exposure to
hazardous substances and the environment led PSR to develop its
birth defects and other reproductive disorders brochure and
distribute it to more than 20,000 medical specialists in
obstetrics and family medicine.
The effects of release of hazardous substances from
hazardous waste sites on cancer rates of communities near their
sites are less clear than for reproductive outcomes. There are
some published studies that show increased rates of cancers of
the stomach, gastrointestinal tract and urinary bladder, but in
my opinion there is not a current, consistent pattern of
association of various cancers with proximity to hazardous
waste sites.
At this point in my testimony, I want to bring some quite
recent studies to the subcommittee's attention. The effect of
air pollution on children's health is a particularly important
subject. Any disease or disability in children reduces the
quality of life and brings expensive health care costs. Knowing
the effects of environmental hazards on children's health is
important because they are preventable--reduce the level of
pollution.
In regard to outdoor air pollution, one major study has
reported serious consequences to children who resided in areas
of California with measured levels of air pollutants. A key
finding includes a correlation between lower lung function and
more intense air pollution. This finding and others from the
study are obviously of great concern to public health, and
raise the obvious question about whether air quality standards
for air pollutants are adequately protective of human health.
Another very recent study was conducted by the American
Cancer Society and associated investigators, and found fine
particulates in sulfur oxide-related air pollution were
associated with excess deaths from lung cancer, cardiopulmonary
disease and from all causes of death combined. Scientific
evidence has emerged from several studies that air pollutants
may exert an even greater public health burden as a contributor
to heart disease. For example, total suspended particulate
levels in the air of Milan, Italy were associated with heart
failure deaths. Similarly, a study of Philadelphia residents
found that an increase in total suspended particulate levels
was associated with deaths from cardiovascular disease.
Although further research is needed to clarify the
association between air pollution and fatal heart attacks,
there is already sufficient data, I believe, to move forward
with public education prevention actions such as public
awareness and physician education campaigns.
Senators as you know, the core principle of public health
is to prevent disease and disability. Regarding toxicants in
our communities, they should be eliminated or reduced to levels
that do not cause adverse human health effects. EPA and States
have made considerable progress in reducing environmental
health risks, and the public health community supports further
risk reduction based on the best scientific evidence. Now is
not the time to gamble with unproven administrative procedures
that may set back the progress already made.
I look forward to any questions you may have. Thank you.
Senator Boxer. I want to thank you, Dr. Johnson. I think
you read the statement very calmly, but the impacts of it I am
just frankly stunned at what you are telling us. I will ask you
a number of followup questions.
Now it is my pleasure to introduce our last speaker, Mr.
Scott Segal. He is a partner with the law firm of Bracewell and
Patterson. For the past 13 years, Mr. Segal has represented
industries such as MTBE producers, trade associations and not-
for-profits. He currently represents electric utilities in
their efforts to change the Clean Air Act enforcement policy--I
assume change it in a way that would----
Mr. Segal. Clarify the NSR program.
Senator Boxer. Clarify--you clarify the Clean Air Act.
Well, good. I thought you wanted to weaken it.
Mr. Segal. No. We can use some clarity.
Senator Boxer. This is good news. Anyway, Mr. Segal, I am
teasing you. Please go ahead and take your time.
STATEMENT OF SCOTT SEGAL, PARTNER, BRACEWELL & PATTERSON, LLP
Mr. Segal. Thank you, Madam Chair, Senator Corzine.
It is my pleasure today to address some of these
environmental enforcement questions. I have to say at the
outset that I have litigated against the Environmental
Protection Agency before and the Department of Justice, who of
course is the Nation's law firm. With all due respect to Mr.
Schaeffer, I have never noticed them to be short-handed. I have
never noticed them to be unwilling to litigate and anything
less than enthusiastic.
I would point out that the first two examples that Mr.
Schaeffer cites--the tremolite mine, which is a quarry in New
Jersey, and the MTBE in Region 9--I am familiar with both of
those. What is interesting, and it goes to the point Mr.
Schaeffer made, and frankly, Madam Chair, that you made, which
is that this is a bipartisan issue, because both of those
requests were made during the last Administration when the
economy was in a relatively stronger situation and the ability
to fund the EPA was at a higher level. I notice that making
tough choices with respect to enforcement is a bipartisan
enterprise. Tough choices need to be made under both
Administrations.
The one thing I would hope that no one believes is that all
of the situations with trends in reductions in employees,
particularly at the Senior Executive Service level at EPA, has
something to do with a partisan finding or an attempt to punish
the Agency. In fact, I have a GAO report here which talks about
Senior Executive Service levels not just at EPA, but across the
government. What it shows is that EPA at this very time is at a
low point in a bell curve, or reverse bell curve, if you will,
where it has more SES vacancies coming up because baby boomers
are retiring and a lot of baby boomers work for the Agency and
have served with great distinction for a number of years. That
curve is ending in the next 3 years.
So I would not want us to believe that somehow the Bush
administration is responsible for demographic trends. The White
House is a bully pulpit, but it is not responsible for all of
that. There are natural cycles within agencies, and some of
these cycles will correct themselves.
I do not wish to diminish the seriousness of this chart
that is up here or of any environmental concern, but I do want
to observe that there is some good news. Senator Corzine
referred to some of it, which is the reductions in air
emissions over time. But to show you how significant those
reductions in air emissions are, I would also remind that over
that same period of 1970's to present, we have had an increase
in energy consumption of some 41 percent and an astounding
increase in gross domestic product of 140 percent, yet we have
been able to reduce air emissions--the very types of air
emissions that Dr. Johnson is talking about; particulate
matter, for example, that he discussed, down 75 percent over
that period.
So we have been able to make gains. How have we done it?
Through gains in efficiency in industry, that is part of it.
How else have we done it? We have done it through enforcement
of the Clean Air Act. We have done it through substantive
provisions of the Clean Air Act, permit restrictions, State and
local requirements, changes to siting--a number of different
ways that it has been done.
We have not done it, however, by the 1999 enforcement
initiative of the New Source Review program. Unless a time
machine was used, we have not done it by that. So of all the
things that could have caused those tremendous reductions, we
know that the recent enforcement initiative of NSR is not one
of those factors. We still face many challenges. One of them
that has been at issue today, mobile sources, still a
challenge. EPA says the personal automobile is the greatest
single polluter. Some have mentioned MTBE. That was part, as
you know, of a broader program, the reformulated gasoline
program, which has produced marvelous results. Although there
are enforcement implications to the reformulated gasoline
program, it succeeds largely absent from traditional
enforcement mechanisms, of the kind of bean-counting that is
discussed in these charts.
In many respects, we are the victim of our own success,
because frankly even as program offices have got the message
that there have been substantial gains and new priorities need
to be established, somehow enforcement officers seem to march
to their own metric of counting numbers of inspections,
counting out civil fines as if that were the only way to reduce
pollution. I know it is not the only way and Vice President Al
Gore stated it was not the only way in his reinventing
government report. He said, ``We need to reach out to all
parties.'' He said, ``Programs can no longer succeed as an
adversarial process with parties seated at separate tables.''
In the finest tradition of that reform, he introduced Project
XL and the Common Sense Initiative under Administrator Browner.
In both of those cases enforcement personnel and their legal
counsel raised questions. In that same tradition, President
Bush has now introduced the Clear Skies Initiative.
Talk about this partisanship stuff, I say this as a
Democrat--I mean, some of you I know crossover vote on this
issue. I am a Democrat and so are the International Brotherhood
of Boilermakers who join us in the bottom part of our
statement.
So how do we fix the environmental enforcement effort?
Legal scholars reflect there are essentially three ways. We
have to have a system that has more clarity, more
predictability and seeks environmental improvement over mere
bean-counting. My argument would be that the current New Source
Review enforcement initiative does not succeed on any of those
three standards. The way it is interpreted now, by reducing
routine maintenance, it actually decreases energy security,
most terribly increases the environmental consequences that we
are trying to protect against. In fact, ``no greater source on
the New Source Review program than Attorney General Blumenthal
from Connecticut, who has joined with Mr. Schaeffer or some of
Mr. Schaeffer's former colleagues in these enforcement
initiatives.'' He wrote, ``Decimating energy efficiency is a
disastrous disservice to consumers and environmental interests.
It means higher energy prices, lower energy supplies, more
greenhouse gases, acid rain and other sources of pollution.''
He said that in suing the Bush administration on efficiency
standards. What I would suggest to you is if energy efficiency
makes sense for air conditioners, it also makes sense for major
industrial and utility sources of electricity. Any
interpretation of the enforcement program which interferes with
the routine maintenance of these facilities does so at great
damage and great peril to environmental protection in the
United States and to workplace safety, as major labor
organizations have indicated.
As one State regulator put it, ``The true measure of
successful enforcement is in quantifiable improvements in our
environment. Improved natural resources, and not fines, must be
the primary objective of any effective environmental policy.''
She concluded, ``The traditional environmental enforcement can
simply encourage litigation and slow environmental progress.
Now is the time to think outside the box on NSR and on other
trends with respect to environmental enforcement.''
Thank you.
Senator Boxer. Thank you very much, Mr. Segal. We will give
people a chance to comment.
I am going to take 7 minutes, then I am going to give
Senator Corzine 7. Whoever shows up will get seven until we are
done with our questions. I want to thank the panel.
It is hard to know exactly where to start, but I just want
to say since, Mr. Segal, you talked about Al Gore and you said,
when you read it back, you will see your statement, which I
will send to Al Gore to have him respond to it. You basically
said that President Bush is essentially picking up where Al
Gore left off with this comment. I think to say that President
Bush and Al Gore are similar on the environment is wrong. If
there is anyplace that we could see differences here, it is
that. Al Gore would never been touting a budget for his EPA
that said we are going to have fewer inspections, fewer
investigations, fewer voluntary disclosures and cut in half the
amount of pollution reduction in light of what Dr. Johnson has
told us. So I just want to say, you have a right to your
opinion and I am going to ask Al Gore if he agrees with this.
I also want to make it clear that the Republicans on the
committee asked that you be--you see, we are nonpartisan. You
are a Democrat, but they asked that you come and speak today,
and I want to clarify that my understanding is that you are
currently working in the private sector to represent clients
who are trying to get changes in the Clean Air Act, and if I
understand it, also representing companies or you have in the
past that have been connected with the MTBE problems. Is that
correct?
Mr. Segal. That is correct.
Senator Boxer. OK. I just want to make sure that people
listening understand this.
Dr. Johnson, I am just taken by your testimony. You have
tremendous credibility in my eyes, given all your work in
public health. If you stop a woman randomly on the street and
say, ``What is the biggest threat to your health?'' The woman,
in my experience, is probably going to say breast cancer. In
fact, it is heart disease that is the largest killer of women.
It is huge. I teamed up with Congresswoman Maxine Waters a few
years back to get more focus on heart disease and women. I want
to go back to your testimony. What you said about cancer and
the environment was that you think more study is needed, but
there is a cause for concern. Is that because it takes a long
time to really understand? Is that a correct summary of what
you said on the cancer question?
Dr. Johnson. Pretty much. What I said in my written
testimony about cancer rates in communities around hazardous
waste sites and Superfund sites in particular was that there
was, in my opinion, no consistent pattern of excess cancers. I
also said in the written testimony this may be because cancer
is a disease of long latency, 20 to 40 years depending upon the
kind of cancer.
I further said, though, that the work from ATSDR that has
looked at the chemicals, the toxicants that actually have
gotten into communities, where people came into contact with
them, were some 30 chemicals that we see over and over and
over, most often released. Eighteen of those are carcinogens or
thought to be. I think that gives us really great concern as to
whether cancer patterns may develop in future years.
Senator Boxer. Yes. So I wanted to clarify that. So your
concern is that the pollutants are cancer causing, but we do
not have enough studies or time behind us yet to know whether
in fact there will be increased cancer rates due to this
hazardous material in the environment.
Dr. Johnson. That is correct.
Senator Boxer. Now, on heart disease, I want to just prod
you on this. Scientific evidence is emerging that air
pollutants may exert an even greater public health burden as a
contributor to heart disease. Particularly alarming is the
reported association between very small particles in the air
and their contribution to sudden heart failure. I want to
explore that with you because the whole argument over this
pollution reduction is not about some abstract theory or
political argument, but it seems to me to be very clear that
there is this connection. So could you speak to me without
notes, just talk to me about the quality of the air and what
happens in terms of the strain on a person's heart?
Dr. Johnson. These findings are really rather recent and
most come from researchers who are either at the Harvard School
of Public Health or have some association with that excellent
institution. This kind of study that has begun looking beyond
the matter of cancer, looking at other health impacts, in this
case cardiovascular disease, are relatively new and I think
extraordinarily important.
What a number of studies have done, and this is roughly 6
to 10, and they have been reasonably consistent in their
findings--Italy, Philadelphia, other areas of the country.
These studies basically look at causes of death and also
look at measurements of pollution. Some of those measurements
obviously include fine particulate matter. They look through
rather sophisticated computer models.
Senator Boxer. Fine particulate matter are those very tiny
particles----
Dr. Johnson. Ten micrometers, 2.5 micrometers. So it is
PM<INF>2.5</INF>, PM<INF>10</INF>.
But looking at these environmental measurements over
periods of time--quite a number of years, 10-12 years. What
they find is when you look at the causes of death, they are
elevated when these pollution levels are elevated. There have
been some studies that have looked at possible causes, because
when you think about it, these are fine, very small particles.
They are basically very small particles of soot that have been
inhaled. How that might relate to heart failures, myocardial
infarctions, is really quite challenging in trying to
understand that. Some studies have been done looking at the
effect of these particles on the ability to control heart rate,
and in particular looking at the variability in heart rate in
persons who have been exposed to various levels of fine
particles. What they find is that the variability decreases.
This is important because it may have implications for the
particles somehow affecting how the vagus nerve regulates the
heartbeat. Now, the vagus nerve is there as part of the
autonomic nervous system to control heart rate. So when we get
excited, like testifying, our heart rate goes up a little bit
and that is because of actions primarily from the vagus nerve
on heart tissue.
Now, if we have less control because of pollution to vary
our heart rate, then this makes us, it is argued, somewhat more
susceptible to heart disease, heart attacks. There are some
other studies that have looked at similar kinds of effects on
heart regulation and so forth. It is a new body of science. It
seems internally consistent to me, looking across roughly 8 to
10 of these studies. It is, I think, of great importance
because if pollution levels that we thought were safe in fact
are contributing to other kinds of mortality, premature deaths,
that is serious business, Senator.
Senator Boxer. Yes. Does this alarm you--and then I am
going to turn it over to Senator Corzine--the fact that we got
this from EPA's own documents that they are cutting back on the
amount of pollution reduction, given what you now know about
this emerging science?
Dr. Johnson. As a retired public health officer who spent a
career in dealing with environmental pollution, both in the
workplace and in communities, yes, this bothers me a great
deal. It bothers me that States have fewer resources to do
things of an enforcement nature, to do other things that will
help us reduce what I call the pollution load that we bear as
an American public. So yes, this does concern me.
Senator Boxer. I want to thank you. I think this message
has to get out, Senator Corzine. You know, it is very hard to
get any message out in this particular time-frame that we are
in. It is understandable. We nurture our families, we love our
children, and I will get in the next round the impact on
children is enormous. We know that. This has been a crusade of
mine for a long time. We have this Office of Children at the
EPA which was set up under Bill Clinton. I was happy to see
that the Administrator has kept it, but if we cannot enforce
these laws, we are going to have suffering.
So I hope that the word will go out from this hearing that
this is an attack on the American people, when you cut back on
what you want to--the dirty particles in the air, and you are
cutting that back, and they are having a harder time breathing,
and the kids having asthma and all the other problems, and we
do not know about the hazardous sites and cancer yet--that this
is an attack, stealth attack because it is not doing what Mr.
Segal is doing up front--I want to change the law. That is up
front. I can handle that. Let's have that fight. I will go to
the mat on it. I will take whatever happens.
But when you do it in a stealth way and you have to pull
apart a budget document, thousands of pages to get this, plus
you never saw this one on the number of people they are cutting
back on, that was something they got from internal documents--
my good staff. This is stealth attack on the American people's
health. I hope word will go out that that is what I think is
happening, and I am not going to let it to unnoticed.
Senator Corzine.
Senator Corzine. Thank you, Madam Chairman.
Let me ask Mr. Segal, do you accept that the pollution
reduction that is shown on this chart and the EPA numbers has
some correlation with the number of inspections,
investigations, and other issues? Or is it all bean-counting?
Mr. Segal. Well, I will tell you, I have been puzzling over
that chart since it got up there. Now that I hear the Chair say
that it was sort of achieved by looking through thousands of
pages and generating it, because I still do not get it. I
looked at the same EPA budget documents, although I do not hold
myself out as an expert on the EPA budget, that is for sure.
What they showed me is in the enforcement area, one, two,
three, four, five, six, seven, eight, nine of the requested
areas are actually having budget increases from fiscal year
2002 to fiscal year 2003. They also demonstrated to me that
grants to States have held steady and actually increased in one
category.
Now, we can argue about it back and forth, but that is one
thing that became apparent to me.
Senator Boxer. Let me, Mr. Segal, if I might ask unanimous
consent to place into the record the actual words that make
this chart valid comes from EPA. They talk about the millions
of pounds of pollutants' reduction. So we will share it with
you. It is page 17.
[The referenced document follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Segal. I am referring to this chart at page 95 of goal
nine, which is the discussion of the EPA's enforcement budget.
But as I say, I do not hold myself out as an expert on the
EPA enforcement budget and it could well be. I will say this--
--
Senator Boxer. Well, sir, if I might----
Mr. Segal. Please.
Senator Boxer [continuing]. Yes, I have the documents, so I
would hope that we would not debate whether this is what is in
the document. I am happy to make it--I will send it over to
you, and put it in the record.
Mr. Segal. Senator Boxer, in fairness, and I think Mr.
Schaeffer would agree, in all 50 States there have been cuts in
money put toward environmental protection. I think it is
unfortunate. You would certainly agree with that. So what I am
saying is I do not think it is a cabal or a stealth attack as
you would describe it, simply limited to the EPA. It is
occurring in all 50 States and it has a lot to do with the fact
that the government in general has far less resources. That is
just a fact. We are in a deficit situation. I am not saying
maybe we should not spend more money here and spend less in
other areas, but I am just saying I do not think you can fairly
say that this is just a stealth attack on the EPA.
Senator Boxer. Well, then I would ask why we had to dig in
the internal documents. This was nowhere to be found; was not
even released to the committee, that shows these cuts. It is
all about priorities and what is important to the American
people.
Mr. Segal. I do not know. I have never seen that. As I
said, I did read the----
Senator Boxer. Of course, you did not, because it was not
made public until we got it.
Mr. Segal. Right. I did read this GAO report which shows
that the number of SES cuts demographically begin to get less
and less and less as we get to 2006, 2007, and 2008.
Senator Boxer. I do not know what you are talking about,
but that's fine.
Mr. Segal. Well, I will be glad to submit this for the
record if you would like.
Senator Boxer. This is what they want to do.
Mr. Segal. OK.
Senator Boxer. This is what they are asking for.
Mr. Segal. But let me answer Senator Corzine's question,
which is, do I believe there is a functional relationship
between the enforcement effort reduction and the levels of
diminished environmental protection. Here, I want to focus like
a laser beam on the NSR enforcement initiative. It is one of
the highest profile enforcement initiatives. It is one of the
major items Mr. Schaeffer complained of in his resignation
letter. Here I would say that if we reinterpret the rules of
NSR as we did in 1999, and we interfere with routine
maintenance activities, then we are doing so at the peril to
environmental protection.
Dr. Johnson has described to you the impacts of air
quality. For me, the interesting question is, how do we best
address that? If we interfere with routine maintenance and we
decrease energy efficiency at these facilities, we will end up
with declines in air quality. I do not think that is what
anybody wants.
Senator Corzine. Mr. Schaeffer, could you respond?
Mr. Schaeffer. Thank you so much, Senator Corzine. I am
dying to answer Mr. Segal on some of these issues.
On this kind of sound bite, which is a sound bite now, that
EPA has reinterpreted the rules to the enforcement actions. I
think Mr. Segal knows that is just what the Justice Department
looked at. That is what the industry asked the Justice
Department to look at. I think his clients were hoping that Mr.
Ashcroft would agree with them, and say we had in fact
illegally interpreted the rules. He did not. That report was
out in January. To the Justice Department's credit, it said the
NSR cases are based on an interpretation of law that is
reasonable and that EPA has been consistent. That is on the
record. That is in January. That is this Administration's
Justice Department. That question I think has been asked and
answered.
I also must respond to this notion that NSR enforcement has
done nothing for the environment, which I heard Mr. Segal say.
I am going to read you some numbers: Tampa Electric Company,
settlement now about 2 years ago, 190,000 tons of nitrogen
oxide and sulfur dioxide taken out of the air every year. You
have heard about fine particulate matter, the scientists say
that is driven primarily by sulfur dioxide. We are talking
about premature deaths. This is a very important issue--190,000
tons from Tampa Electric.
Senator Corzine, you already mentioned the PSE&G
settlement. That is over 50,000 tons. We estimate that is one-
third of the SO<INF>2</INF>, the sulfur dioxide emissions in
your State taken out of the air in the PSE&G settlement. To
their credit, they settled with us.
Refineries--150,000 tons of nitrogen oxide and sulfur
dioxide taken out of the air from our settlements with refiners
covering one-third of U.S. refining capacity. Cinergy and
Vepco, if the Administration will get the agreements signed
that these companies already agreed to, 750,000 tons of sulfur
dioxide and nitrogen oxide.
What is wrong with that? That is not bean-counting. We are
talking about emission reductions and we are talking about
human health.
Senator Corzine. Mr. Segal, I think your point was that
routine maintenance, changing pipes, has ended up getting tied
up in New Source Review. But for the life of me, I do not know
how that in any way obviates the importance of the kinds of
dramatic shifts that have come from the implementation of these
New Source Review standards.
Mr. Segal. Senator, I will keep it real short on this one.
In many respects, we are like two ships passing in the night
here. My clients do not advocate a repeal of the New Source
Review program. To the extent that companies have violated the
law, they ought to be held to task under NSR. Our beef is a lot
more narrow than that. The question is, should the NSR program
be used in cases where it is inappropriate, in an effort to
retire, essentially to retire older coal-fired generation
capacity? That is using the square peg in the round hole. That
reduces environmental protection, reduces workplace safety, and
frankly reduces the energy security that Senator Inhofe was
talking about at the outset.
So my beef is not--I never said there should not be another
settlement discussion. That is not our beef. But to apply the
full weight and authority of the NSR program for a pipe
replacement or an upgrade in a turbine blade is ridiculous and
is contrary to energy efficiency.
Senator Corzine. Did you happen to read that Wall Street
Journal article that I cited where there were only about 63
percent of the people conforming with laws?
Mr. Segal. I did.
Senator Corzine. How are we going to get at legitimate
enforcement if we are pulling away--and these were obligations
that were intended for 1997--if we are going to have the kinds
of reductions in personnel, and then I think the real
implication is the kinds of costs in public health that flows
from this? I find it, if you had 63 percent hit ratio on people
conforming to the law on embezzlement or reporting adequate
capital adequacy at banks, you would have a failed financial
system--something that I know a little bit about. I just do not
understand these kinds of statistics and I do not understand it
in the context of the New Source Review either.
Mr. Segal. The only thing I would say is, to put this in
perspective, what this report says is that 63 percent of the
major sources had obtained permits, and it attributes the cause
of that to be an excess--sort of a bureaucratic slow-down with
respect to permit granting. The absolutely dead wrong thing to
do to prompt more permit granting is to precipitate an endless
cycle of litigation. In my testimony, ``State air authorities
as saying that is the dead wrong way. That is the way that
slows environmental progress.''
So I guess I would say to Mr. Schaeffer or others that if
we misuse, in my judgment, the NSR program, that will not speed
up this permitting question. It will only make matters worse.
So I understand these statistics. I have not peer-reviewed this
report or anything like that. All I have seen is the Wall
Street Journal article. But in my judgment, an endless cycle of
litigation is not the cure for the problem that is discussed in
this article.
Senator Corzine. Mr. Schaeffer, any comment?
Mr. Schaeffer. On the issue of the narrow change and the
routine maintenance question, I have raised this before, but we
have a TVA case now going to the 11th Circuit. The trial
transcript is well worth reading. I can share a copy with Mr.
Segal. I am guessing he already has it.
We asked the TVA's own witnesses, and these were hostile
witnesses, Were these routine maintenance activities or were
these big projects? We put the big projects that we had
identified as violating New Source Review because they
increased emissions up on the board. That witness, a 12-year
employee at TVA, said unequivocally, those are routine
maintenance. I am sorry. Let me correct that. Those are not
routine maintenance. He said, ``No, sir, those are not routine
maintenance.''
Now, his lawyer called him back on the stand and
essentially said, ``Do you want to think about that and try
that again?'' The answer came back the same--no, can't go with
you; these are not routine maintenance; these are big projects.
So our position is, the industry knew. The industry knew
these were likely to trigger New Source Review requirements.
They took a chance. They took a risk. I am not saying these
were criminal. They have got their legal arguments together. We
have shed some light on those projects now. We would like Mr.
Segal to make his very eloquent arguments in court and not in
the political arena by trying to get the law changed; not by
doing some narrow thing to routine maintenance, by essentially
turning it into a loophole that swallows the whole Clean Air
Act.
Senator Boxer. We have to vote and we are going to come
back. Can the witnesses stay put? I just wanted to say, Mr.
Segal, when you opened up in your opening statement, you said
the NSR has not done any good. I wrote it down. Now you seem to
be saying, ``I am not saying it did not do any good.'' So when
we get back, I want to probe that with you a little bit because
it sounds like you backed away.
Mr. Schaeffer, that was an interesting story that you told
about that witness. I am married to a lawyer. My dad was a
lawyer. My son is a lawyer. They always tell me, do not ask a
question you do not know the answer to. It sounded like that
lawyer did not get the answer he wanted. This fellow told the
truth twice, that they were using this as an excuse. I will
tell you something, you want to look at an interesting
situation in California. The energy generators were pulling
plants off-line so they could say that they had to maintain
them, when in fact they were holding back electricity. So there
is a lot of stuff going out that does not--it is not all that
it seems.
When we come back, Mr. Segal, I am going to talk to you
about your openings statement. We can read back what you said,
and now you are backing up, saying, I am not saying it does not
do any good. So which is it? I want to get to that.
But I want you to know the whole issue is here not whether
New Source Review does any good, but it gets to the enforcement
question in general, which is what they are doing here to the
staffing.
Thank you. We will be back shortly. We stand in recess.
[Recess.]
Senator Boxer. We are going to reconvene. We are not going
to be that much longer, as promised, but I want to say to Mr.
Segal, your testimony confused me because your statement at the
opening was that we have made a lot of progress on the
environment--by the way, you listed enforcement, so I am sure
you should be as upset as I am at this cut in the personnel.
Then you said, but NSR has not done any good. Then I am going
to ask Mr. Schaeffer to respond to whether NSR has done any
good.
Mr. Segal. What I said, and if I did not say it this way,
what I meant was that the 1999 NSR enforcement initiative
cannot be fairly stated to have caused the 20 years that
preceded it of declines in air emissions; that is a more
complicated picture than that. It involves efficiency gains by
industry. It involves the progress of new technology. It
involves some fuel-switching. It involves other substantive
provisions of the Clean Air Act.
But remember, the very interpretation of NSR that Mr.
Schaeffer rejects was the interpretation that obtained during
the majority of the period where air emissions were declining.
One other thing--Mr. Schaeffer had indicated that he has
the transcripts of folks from TVA. I want to say, I have a CD-
ROM which shows transcripts of EPA officials also being asked
questions under oath. One little bit of it, which I will submit
for the record if you would like that I think you would love,
is a statement by EPA officials that they changed the
definition of what triggers NSR literally the night before they
filed their litigation; that it appeared in no Federal Register
document, no memorandum, no guidance documents. So to the
extent we do not like stealth attacks and we want everything to
be on the record and open, that is not the way to do business
either.
Senator Boxer. Mr. Schaeffer, you want to----
Mr. Schaeffer. I would love to see that. I will give you
the TVA transcript if you give me----
Mr. Segal. It will be a trade.
Mr. Schaeffer. OK.
Senator Boxer. Let me just say that since we had our
electricity crisis in California, four power plants that supply
1,459 megawatts have come on line, and an additional 16 power
plants have been approved. These plants will provide 9,887
megawatts. I have a map showing where they went. My
understanding is because of New Source Review, there is no
adverse impact on the environment, and I think that is very
significant.
Dr. Johnson, because I feel that what happens in a lot of
these hearings, things get very technical. We have seen them
get legalistic, technical. The reason I am here, the reason I
want to be here, is because I want to protect the health and
safety of people. I have always viewed this as my No. 1
priority.
Now, you cannot do the impossible. We all know that.
Everything we do, we compromise in some fashion, of course,
because certain things--you do not have the technology, etc.
From the time I served on a local air quality board, we put in
the notion of best available technology. The notion is that you
use what is available, because if you do that, you are going to
cut down on the pollution and you are going to have fewer
casualties out there. Is it going to be perfect? No. Somebody
who is sensitive is still going to have a problem. But we are
trying to do the very, very best we can.
All the talk about costs, I think Senator Corzine made a
good point. The cost of the health care system, for example, of
children who are staying home because of asthma and need care
because of asthma--Blue Cross/Blue Shield in my State sent out
cassettes to everyone there saying this is the way to use your
asthma medication in the best way. Asthma is so prevalent, if
you go to any school, Mr. Segal, in California--I cannot speak
for other States; I am sure it could be even worse in other
States--and you ask these children, how many of you either have
asthma, have someone in the family with asthma, have missed
school--you will see 40 percent of the classroom kids will
raise their hands.
I want to probe Dr. Johnson on this question of children's
health. When we talk about the most vulnerable populations, I
think it is a very important point because it used to be that
when the environmental rules are made, they are made and they
look at the impact on a healthy, 150-pound man. We have been
arguing that does not answer the question for someone, a female
for example, who is littler or a child or an older person who
is vulnerable or a sick person.
So I want to talk to you about this issue of children. I do
not know if it is your expertise, but from your experience and
your reading of the studies, is it not so that children are far
more susceptible to these toxins? Explain to us some of the
things--again, you had it in your opening testimony, but I want
to stress it for the record, the impact of children that you
believe there is no question about it; not that you think, but
what you know so far, Dr. Johnson.
Dr. Johnson. The simple answer is yes. Children are more
vulnerable for various physiological as well as behavioral
reasons. In addition to children, the fetus is also at extra
risk if maternal--and there is some indication, paternal--
exposures to toxicants have been present. Children are more
vulnerable because their physiology is different from what an
adult has. Their breathing rate is faster. Their metabolism is
different from that of an adult. Their play activities are
different. I have now proudly six and two-thirds grandchildren.
I have been through the delightful stage of watching them learn
to walk, but first they crawl, when they crawl they put their
hands in their mouths etc. So these kinds of activities of
children are quite different, obviously, from that of adults.
Senator Boxer. One question on that--when children breathe
in the air, don't they breathe in more relative to their size
than an adult?
Dr. Johnson. Than adults do--that is correct. So if you
have some kind of toxic experience that is going to diminish
children's ability--their lung capacity, their forced vital
capacity and so forth, how efficiently they breathe--then that
is a health consequence to that child.
If, as I said, the mother has been exposed during
pregnancy, that can have an effect, as I testified, on birth
defects that are associated I think quite strongly and clearly
now with certain kinds of toxicants in the environment.
So children who have birth defects, children born with
lower birth weights than what would have been normal, represent
a health consequence, and the importance of the consequence
varies according to the degree of severity.
Without getting terribly personal, I am a father of a child
with a serious birth defect--spina bifida. It is a horribly
difficult condition for both the child as well as the parent.
Avoiding birth defects through traditional public health
mechanisms is a very preferred course to take.
We have learned the lesson of lead, very low exposures to
lead in children, from various sources. One of the great public
health stories is the removal of tetraethyl lead in gasoline in
this country. Getting lead out of paint used in housing is
another success story. We have learned through our science. Our
science has led us to these conditions that need to be improved
upon. We learned from science what low-level exposures to lead
were doing to young children, and to consequences of exposure
prenatally.
We are learning the same thing about now air pollutants,
very recent research that I have described, and this is not the
time for us to start trying new ways to enforce our laws, to do
other things that will help us reduce the pollution load. We
have to have the science guide us, and that science, it seems
to me, is rather clear what it is pointing toward--reduce the
pollution load.
I am not stupid to the complexity of all this happening. I
am simply here as a public health officer saying this is what
the research is showing. We need to factor this into how we go
about our business in dealing with pollution and the American
environment.
Senator Boxer. So when we cut back on the inspectors--and I
am going to ask Mr. Schaeffer about that in a minute--and we
reduce the amount of pollutants we are taking out of the air,
it is a fact that I could quote you on saying, Dr. Johnson,
that the children, because of these various vulnerabilities,
are going to feel it first.
Dr. Johnson. Yes, I agree with that very much. Pollution
reduction is in the interest of betterment of children's
health.
Senator Boxer. Right.
Dr. Johnson. Period.
Senator Boxer. I would also point out for everything, and I
know Mr. Segal agrees with the lead issue, he was nodding his
head, everyone of these improvements came with howls and
screams from industry--every one. There wasn't any. I mean, you
could look at seat belts; you could go anywhere. It always came
from the public sector to say, we know people aren't going to
do it. I understand it. If you are in it for the bottom line,
you are in it for the bottom line. That is our system. You are
going to be a force for the status quo. In the end, my belief
is we make--everybody is better off. Business is better off.
Now, you have the car companies advertising that they have
these great air bags. Well, that was something they did not
want to do. We have the best air bags in the business. So in
the end, we all come together on this, but it is always a
struggle and a fight.
Which gets me to you, Mr. Schaeffer. We hear about the
lead. The lead issue is--it is just devastating to see the
impact of lead on children's brains and what happens to
children. Isn't it true that there may be some inspections that
are not happening on lead because of these cutbacks?
Mr. Schaeffer. We do have a serious shortfall in that area.
The requirement I think you are referring to is one that has
landlords and sellers of residential property notify tenants or
buyers about the presence of lead hazards. It is a simple
notification requirement, but it helps mothers with young
children, fathers with young children know that there is lead
in the house and that they may need to take care of it.
We are seeing a fair amount--actually a lot of
noncompliance, especially in areas of public housing. With the
resources we had, yes, a couple of years ago I was estimating
we got to 1 out of maybe 5,000 residential units with an
inspection every year. That is 1 out of 5,000. If you look at
the 64 million units that are subject to this law, it is going
to take us 1,000 years to get through all of them. That housing
will be long gone before we can finish the inspections.
Obviously, those are very important requirements to protect
especially young children, and I am concerned that we are short
of what we need.
Senator Boxer. Yes. Is it a fact that when you came on--not
when you came on--when the Bush administration came on, you
were ready to hire some new people and you were told not to do
that?
Mr. Schaeffer. That is true. That was last spring. We had
offers to a couple of, actually two attorneys in the Air
Program, in personnel, and I had to call them and withdraw
them. We have other examples, in essence, of essentially being
told you can't fill the vacancies; we are stepping down the
number of personnel, to try to make the numbers you have
displayed.
Senator Boxer. Let me thank everyone here. I just want to
say I think it has been a good hearing. I have had some very
encouraging conversations with people on the Budget Committee,
to give them my sense of it in terms of what we need to do in
the budget. It is all well and good to say, gee, we are in a
budget crunch. That is life. I am in a budget crunch in my
house too, but I decide the things that are most important I am
going to do. If what is most important to me in this budget is
protecting the health and safety of the people that I represent
and the children and the sick people and the old people and the
weak people, that is what we are here for. So it is a priority.
We will figure out what to do. We will figure out some
things that are less important and we will do it. That is why
we get paid the big bucks, is to figure these things out.
I want to say to Mr. Segal, I look forward to the day that
maybe you will switch sides and come on the other side of the
equation, because you are very good at what you do. I would
love to see you on what I consider to be the public health
side, and be great.
I want to say to Mr. Schaeffer, in a straightforward way,
that you are a rarity in life today. Now, I do not say this in
any way to give you a big head, because that is not the point.
I think the people are few and far between who are willing to
stand up and say, ``I am walking away; I am not going to hide
how I feel; and I am going to tell people how I feel.'' No
matter what pressures may be put upon you, I want you to
remember this, that you know the truth and the truth can never
hurt you. You just keep on speaking the truth. I think you are
a fair person. I think you showed that today. You are going to
be missed immensely by many people who know you and many who
never met you. I hope that we will be able to call on you in
the future because this is not a ball that I am going to drop.
Anyone who knows me knows that I am tenacious on the point.
I may not win every time, but I am tenacious. I have a feeling
that the people in the country want us to protect their health
and the health of their children and their grandchildren. This
is not about numbers and percentages. Let's look at the other
chart. Taking the tons of pollutants out of the air--this is
not just a intellectual argument. It means that real people who
we know are going to have real problems. If I can have anything
to do, a number of us, we are going to change this. We are
going to say no to this. If the President wants to veto what we
are doing, fine. I will take that to the American people any
day of the week. I feel it is something that we must debate.
Dr. Johnson, thank you for what you are doing. You have
stayed, really, in the public arena in many ways working for
the public good. I do not know what I would do if I did not
have people like you to call on because there are a lot of
folks who do not like what I do. They let me know every day of
the week, and they let me know every time I run for office.
What I believe is that you tell the folks what is happening,
they will send you back.
Now, I cannot do that alone, because I am not a doctor and
I do not know all those studies. But the fact that you brought
those studies to our attention is very important, and I hope
again that you will be willing to come back when we get into
another discussion like this.
So I appreciate your all being here. I know it was not easy
for Mr. Segal, but hey, he knew what to expect. Senator Inhofe
had a little bit of a sore throat or he would have stayed and
defended you, I am sure. But I thank everyone for being here.
We are going to keep talking about this. This is going to be a
budget fight, and you have added immeasurably to our case.
Thank you.
The committee stands adjourned.
[Whereupon at 11:50 a.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Eric Schaeffer, Consultant, Rockefeller Family Fund
Thank you, Madame Chairman and members of the subcommittee, for
inviting me to testify at today's hearing on EPA's enforcement program.
I am presently a consultant to the Rockefeller Family Fund, but for the
past 5 years was Director of the Office of Regulatory Enforcement,
managing the civil enforcement program for Federal air, water, and
hazardous waste laws, and other environmental statutes. As you might
expect, I have some opinions on the value of Federal enforcement of
these laws, but will make three points in my testimony that may help
you to draw your own conclusions:
<bullet> The budget for Federal environmental enforcement
program is being cut, and we are losing expertise as a result;
<bullet> The budget cuts do have real impacts on our ability
to protect the public from violation of the laws enacted by
Congress;
<bullet> EPA and States should not be pitted against each
other in a battle for scare resources, when both levels of
government have an essential role to play in protecting the
environment.
First, the civil enforcement budget for all programs except
Superfund has been cut sharply between fiscal year 2001 and the 2003
budget proposal. The number of full time employees for inspections and
case development has declined from 1,465 in fiscal year 2001, to
1,343.5 in fiscal year 2002, to 1,266.6 in the fiscal year 2003
proposal, for a 14 percent decline in 2 years. Contract resources used
for field sampling, inspections in key programs like fuel standards,
and expert witnesses has dropped even faster, from 12.4 million in 2001
to 10.1 million in the 2003 proposal, over a 20 percent decline. These
projections can be easily verified by referring to the Agency's own
operating plan, which establishes the spending ceiling for all EPA
programs. These cutbacks accelerate a trend that began in the late
nineties, when Congress disallowed inflation adjustments to the
enforcement budget for several years in a row.
Congress appeared to reject this trend in the fiscal year 2002
Appropriations Act, when it directed EPA to, ``restore Federal
enforcement positions in accordance with the fiscal year 2001 Operating
Plan.'' That did not happen. Instead, the FTE's for inspections and
civil enforcement for programs other than Superfund were cut by nearly
130 positions below last year's level.
These cuts do not come from shedding ``surplus'' vacancies the
Agency was somehow unable to use, as some have suggested. They reflect
a planned reduction in hiring ceilings and contract dollars that is
being phased in over a 2-year period. While no staff have been laid
off, EPA enforcement has been unable to fill vacancies for those who
have left voluntarily, and likely will have to shift some staff to non-
enforcement functions to manage the reductions in the fiscal year 2003
budget if it is approved. It is the Administration's right to propose
cuts in the Federal enforcement budget, but those decisions ought to be
in plain view.
Next, the consequences of reducing Federal enforcement ought to be
made clear. Nearly 2 years ago, I wrote a memorandum to the Assistant
Administrator detailing the effects of restrictions that Congress
placed on our budget in fiscal year 2000. These effects include:
<bullet> Reducing inspections of fuel to see if they meet
Clean Air Act standards;
<bullet> Declining to followup on tips about cheating on
engine air emission standards;
<bullet> Reducing inspections and enforcement of new Clean Air
Act standards for hazardous air pollutants;
<bullet> Conducting only a nominal review of new Title V Clean
Air Act permits;
<bullet> Abandoning efforts--almost entirely in some regions--
to enforce the Toxic Substances Control Act, and the school
asbestos program;
<bullet> Reducing followup inspections in a county with
serious air quality problems, and one where we received serious
complaints from local residents;
<bullet> Providing only a limited response to desperate
requests for help from EPA Region 9 on the MTBE investigation
in Santa Monica, California, and the investigation of an
asbestos quarry in New Jersey by Region 2;
<bullet> Abandoning a national effort to work with States on
the lack of financial assurance capacity for treatment, storage
and disposal sites, such as that which led to the recent
bankruptcy of Safety-Kleen;
<bullet> Inspecting only about one out of every 50,000 housing
units subject to Federal laws requiring that tenants and
homebuyers be notified of lead hazards. With 64 million housing
units to go, we are going to be at it for hundreds of years at
the current rate;
<bullet> Turning back requests for inspections of sewage
sludge disposal practices, despite a recent report from EPA's
Inspector General that is cause for concern.
The memo listed specific cases affected by these budget cuts, and
it was based on extensive consultation with my program managers or
staff. It might be useful to ask the U.S. General Accounting Office to
update that review. In fact, last year, the GAO recommended that EPA
not cut the enforcement budget without ``more complete and reliable
work force-planning information than is currently available on the
enforcement workload and the work force capabilities of EPA's 10
regional offices.'' No such review has been conducted to justify the
latest budget proposal.
EPA has taken a number of steps to try to get more value out of the
diminished resources for Federal enforcement. These include a policy
that encourages the voluntary disclosure and correction of violations,
which has won praise from the Washington Legal Foundation and helped
thousands of facilities returning to compliance without litigation.
Almost all cases are settled out of court, with penalties only a
fraction of the amounts we are authorized by Congress to demand. The
Agency has focused its scarce resources, appropriately in my view, on
several key areas where violations result in the most environmental
damage, and tried to make its national experts more geographically
mobile to work on the most important cases. It has pursued global
settlements that cover many facilities, and which offer economies of
scale to both the government and companies that enter into such
settlements. No doubt there is much room for improvement, but there is
a limit to how far improved efficiency can compensate for budget cuts
in a program that is already stretched so thin.
I want to turn next to the argument that the States will pick up
any slack left by cutting the Federal enforcement program. You will
have to draw your own conclusions, but I would ask that you consider
the following:
<bullet> Many programs are still managed exclusively by the
Federal Government. These include fuel standard and vehicle
emission controls, wetlands protection in 48 States, pesticide
registration requirements, right-to-know programs, the Toxic
Substances Control Act, the Clean Water Act in six States--the
list goes on. The Federal Government still enforces these
laws--the State lack the legal authority to assume this
responsibility.
<bullet> EPA and States are gradually working toward a
practical division of labor. EPA, for example, has a growing
docket of large cases that focus on multi-state corporations,
or trans-boundary pollutants. These cases can be more
efficiently handled by the Federal Government, although many
States join these suits as co-plaintiffs. For example, last
year we successfully reached settlement with companies
representing almost a third of U.S. refining capacity, that
will reduce nitrogen oxide and sulfur dioxide pollution by over
150,000 tons per year.
<bullet> Finally, it has to be said that some States still
lack the capacity, sometimes through no fault of their own, to
enforce certain requirements. EPA has had to step in behind
States that face sudden shortfalls in funding, or a tough
polluter that has tried to use its political influence to avoid
complying with the law. A recent letter from the Environmental
Council of States to Senator Jeffords notes that State
environmental agencies are facing cuts of 6 percent or more
this year. The same letter questions, I think it is fair to
say, the wisdom of pitting two underfunded enforcement
programs--State and Federal--against each other when both have
so much to do.
You sometimes hear today that we have moved beyond the need for
enforcement, because companies have internalized environmental values
and serious violations occur about as often as shark-bite or lightning
strikes. That is not my experience. Companies are under enormous
pressure in today's highly competitive global marketplace. They are
bought and sold quickly, sometimes by companies headquartered in other
countries, broken into component parts and reassembled, and expected to
turn a profit in short timeframes. These companies are ultimately run
by imperfect human beings, not abstract ``management systems,'' and the
temptations to cut environmental corners in the face of such pressure
should not be surprising.
While EPA has encouraged voluntary auditing as a way to help check
these impulses, the Enron debacle illustrates the limits of self-
policing. Federal enforcement can help to keep the marketplace honest,
and I think the American public and responsible businesses
instinctively understand that.
In the end, I think the question is not whether EPA or the States
will enforce the Clean Air Act, the Clean Water Act, and hazardous
waste laws; that's a false conflict, as there is more than enough to do
for all of us. The real issue is whether the laws that protect public
health and the environment will be enforced at all; whether, in Teddy
Roosevelt's words, compliance will be demanded as a right, not asked as
a favor. We can no longer take that question for granted.
Thank you again for your efforts to examine the Administration's
environmental enforcement program, and I would be pleased to answer any
questions you may have.
__________
Statement of Scott H. Segal, Bracewell & Patterson, L.L.P.
Senator Boxer and members of the subcommittee, thank you for this
opportunity to testify regarding the current state of EPA enforcement
programs. My name is Scott Segal, and I am a partner at the law firm of
Bracewell & Patterson. In that capacity, I have represented clients
here in Washington on environmental policy matters for 13 years. I have
worked with a wide variety of Federal agencies, and have become
familiar with a number of industrial sectors. I have represented
private corporations, trade associations, and non-profit organizations.
In addition, I serve on the adjunct faculty of the University of
Maryland (University College) in the area of Science and Technology
Management.
I represent many groups that have taken an active interest in
environmental enforcement matters. With respect to the current need to
clarify the New Source Review program, I specifically represent the
Electric Reliability Coordinating Council, a group of six electric
utilities. Further, I serve as outside counsel to the Council of
Industrial Boiler Owners, a trade association whose members represent
some 20 industrial sectors. While I have learned much from these
clients, the views I express today are my own.
environmental indicators show marked improvement: the example of
clean air
In the United States today, we have much to be proud of when we
contemplate the success of environmental programs. It has often been
observed that at the outset of the current Federal environmental
programs in the early 1970's, our problems were substantial and
obvious. It stands to reason that at that time, and for a period
following, our environmental enforcement priorities were also fairly
obvious. In many ways, as milestones of environmental achievement have
been reached, our adversarial enforcement model has not caught up.
It is clear that substantial environmental progress has been made
since the adoption of major control statutes. Using clean air progress
as an example, we can see measurable success. An analysis of Federal
Government data earlier this year demonstrates astounding reductions.
The analysis tracks air quality gains and energy consumption during the
30-year period from 1970-1999. It is derived solely from data produced
by the U.S. Environmental Protection Agency (EPA) and the Energy
Information Administration (EIA) of the U.S. Department of Energy.
The nationwide data show that since 1970:
<bullet> Carbon monoxide (CO) levels have dropped 28 percent;
<bullet> Sulfur dioxide (SO<INF>2</INF>) levels have decreased 39
percent;
<bullet> Volatile organic compound (VOC) levels have declined 42
percent;
<bullet> Particulate matter (PM<INF>10</INF>) levels have fallen 75
percent;
<bullet> Airborne lead levels have declined 98 percent; and
L<bullet> Overall energy consumption has increased 41 percent--by
sectors, commercial energy consumption grew by 80 percent, residential
energy by 34 percent, and industrial energy consumption by 21
percent.\1\
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\1\ Foundation for Clean Air Progress, Air Pollution Plummets as
Energy Use Climbs (release of study results) (January 17, 2002),
available at: www.cleanairprogress.org /news/energy--01--02.asp. The
study's state-by-state analysis tracks air quality and energy
consumption during the 15-year period of 1985 to 1999. The data were
drawn from the National Emission Trends (NET) data base which is
available from EPA.
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Senator Boxer, these gains are evident even in challenging air
emission situations, such as your own State of California. As Peter
Venturi, a California State Air Resources Board official stated at a
recent EPA hearing in Sacramento, ``The system is working,'' noting
that smog-forming emissions from businesses in the State have declined
by 50 percent in the past 20 years despite a 40 percent increase in
population and commensurate industry growth.\2\
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\2\ Venturi is quoted in the Statement of C. Boyden Gray, Hearings:
Air Emissions from Power Plants, Senate Committee on Environment and
Public Works, July 26, 2001.
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The acid rain reductions, contained in Title IV of the l990 CAAA,
are of special importance because they in part serve as a model for the
Administration's recent Clear Skies Initiative and for legislation
pending before this committee. Title IV has, by all accounts, been
highly successful. Gregg Easterbrook, a senior editor at the New
Republic, wrote last summer that the results have been ``spectacular.
Acid rain levels fell sharply during the 90's, even as coal combustion
(its main cause) increased.''\3\
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\3\ Id.
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Notwithstanding these successes, there remain some difficult
problems. Ozone levels, while improving, are still in violation of the
NAAQS in substantial sections of the country. I think it's important to
say here that while acid rain is primarily, though not exclusively, a
power plant problem, ozone is primarily a mobile source problem today.
Cars, trucks and buses account for twice the NOx produced by power
plants, which in turn have no role in VOCs, the other smog precursor.
That mobile sources account for the greater portion of pollutants of
concern to human health is clear. EPA itself has observed that, ``in
numerous cities across the country, the personal automobile is the
single greatest polluter, as emissions from millions of vehicles on the
road add up. Driving a private car is probably a typical citizen's most
`polluting' daily activity.''\4\
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\4\ U.S. Environmental Protection Agency, Automobile Emissions: An
Overview, Factsheet OMS-5 (August 1994). With respect to NOx emissions,
a comparison of reductions required of mobile sources and electric
utilities shows that the utilities are pulling their own weight. Mobile
sources contribute 58 percent of annual NOx emissions, more than double
the 25 percent generated by electric utilities, and consequently would
seem to have much more scope for emissions reduction.
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Much has been written recently about the effects of small diameter
particulate matter, or PM. Thanks to a combination of the TSP and
PM<INF>10</INF> NAAQS, the ozone standard and the acid rain program,
the United States has engineered a massive reduction of
PM<INF>10</INF>, which is now largely in attainment (achieving a 15
percent reduction from 1990 to 1999 and a 80 percent reduction from
1970). EPA has pending a NAAQS to control PM<INF>2.5</INF> which could,
if implemented, call for further reductions of power plant emissions,
along with other pollutants. In the meantime, existing EPA control
programs are producing continuing reductions of what EPA describes as
the ``gaseous precursors of fine particles (e.g., SO<INF>2</INF>, NOx
and VOC), which are all components of the complex mixture of air
pollution that has most generally been associated with mortality and
morbidity effects'' (PM<INF>2.5</INF> emissions declined 17 percent
from 1990-1999). In addition, it is far from clear that PM levels
should be viewed as a traditional enforcement issue; the President's
own proposal for a Clear Skies Initiative is another, undoubtedly more
efficient mechanism to incentivize and engineer further reductions in
PM. And recent data has demonstrated that among the most dangerous
forms of PM are those arising from automobile exhaust--a source
controlled by the Federal reformulated gasoline program, a program
enforced with a minimum of traditional adversarial enforcement actions.
changing environmental enforcement to reflect new realities
In some respects, we are a victim of our own success. As
environmental indicators are trending in a positive fashion, the
decisions we make as a society become more difficult in the area of
allocation of resources. Environmental protection remains just as
important, but the tools we use must become more refined.
Unfortunately, while many program officers understand the need for
changing priorities, enforcement officers often view the world in a
binary fashion with little room for subtlety.
There seems to be a bipartisan consensus that such an approach
makes little sense, and can even produce perverse results. Then-Vice
President Al Gore, in his September 1994 report to President Clinton on
the progress of governmental reinvention activities, observed that,
``EPA Administrator Carol M. Browner, for instance, is reaching out to
all parties with potential roles to play. Environmental protection, she
says, can no longer succeed as an adversarial process, with the
polluter on one side of the table and the offended party on the other.
Now, all parties must sit and work together.''\5\ Two years later, Vice
President Gore revealed the successes that could be achieved when pilot
projects were adopted--sometimes over the objections of enforcement
officers--such as Project XL and the Common Sense Initiative at EPA. He
stated, ``EPA has found that when they let companies volunteer to cut
pollution without the government dictating how they had to do it,
thousands of companies jumped at the chance.''\6\
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\5\ Vice President Al Gore, Creating A Government That Works Better
and Costs Less (Chapter III--Creative Approaches to Environmental
Protection)(September 1994).
\6\ Vice President Al Gore, ``The Environment'' from 1996 Annual
Report: The Best Kept Secrets in Government (report to President
Clinton regarding Reinvention of Government and the National
Performance Review).
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What Vice President Gore and Administrator Browner recognized from
their efforts at governmental reform is what is evident today: as the
nature of environmental challenges has changed, so too must antiquated
notions of a purely adversarial approach to enforcement.
Two thoughtful legal observers have articulated a rubric for
judging effective environmental enforcement. To be effective, an
enforcement regime must:
<bullet> be clear in what it mandates and prohibits;
<bullet> be predictable in how it punishes violations of the
regulations, and rely where possible on cooperative, problem-
solving approaches; and,
<bullet> seek environmental improvement, not numerical
enforcement targets.\7\
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\7\ Alexander Volokh and Roger Marzulla, Environmental Enforcement:
In Search of Both Effectiveness and Fairness, RPPI Policy Study No. 210
(Aug. 1996) at http://www.rppi.org/environment/ps210.html.
By the standards of this approach, it would appear that the current
approach to environmental enforcement is less than optimal. One the
first measure--clarity--the New Source Review program is an example
presently of what NOT to do. But it is hardly alone in a lack of
clarity. In fact, one widely quoted study has it that fewer than one
third of the responding attorneys felt that it was even possible to
comply fully with Federal environmental laws given their current lack
of clarity.\8\ Unfortunately, the mechanism used to address enforcement
clarity often is part of the problem: when EPA issues enforcement
guidance documents that have the effect of creating entirely new
obligations without notice and comment rulemaking, obligations become
all the more confusing and less respectful of proper process.\9\
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\8\ Jonathan H. Adler, Anti-Environmental Enforcement (Feb. 1,
1997), at http://www.cei.org/utils/printer.cfm?AID=1307 (citing a 1993
survey of 200 corporate general counsels conducted by the National Law
Journal).
\9\ The same source continues: ``Federal agencies publish more than
65,000 pages of rules and interpretive statements in the Federal
Register each year, and issue countless pages of regulatory guidance.
Much of this ``guidance'' actually attempts to change the meaning of
the regulations, or to add new requirements not contained in the
published rule. These thousands upon thousands of pages of regulations
and interpretations often are inaccessible to most Americans, creating
a welter of ``private regulations'' of which citizens are completely
unaware. These memoranda, letters, and notes, prepared by thousands of
separate government employees, are sometimes inconsistent with each
other--as well as with the regulation. Indeed, the more ambiguous the
regulation, the greater the proliferation of interpretations and
guidance, leaving the citizen to pick through them to ascertain--at his
peril--what those regulations require of him. The results, in many
instances, include ruinous penalties and the shattering of lives of
ordinary, law-abiding Americans who tried to do the right thing.''
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The second observation, the need for predictability, is also
missing in many of today's enforcement activities. Again, the NSR
program is an excellent example of the problems faced by the regulated
community. As we further discuss in the White Paper attached to this
Statement as Appendix One, EPA's NSR rules, which for 30 years have
been consistently applied only to new greenfield sources or major
modifications of existing sources, are now being reinterpreted without
any rulemaking change and applied to routine repair, replacement and
maintenance activities at all existing sources, causing major
disruption in routine maintenance schedules, curtailing power output,
and dismembering whole Titles of the Clean Air Act.
The rationale for the radical shift in interpretation is in the
allegation that utilities are by illicit maintenance keeping afloat old
plants that were ``grandfathered'' from any CAA controls and that are
now threatening the nation's health. But the 1990 CAA Amendments
mandated sweeping reductions for all power plants regardless of age
through the use of highly efficient market incentives. The 1990 Act
thus established a flexible market-based system that is working very
efficiently to drive down pollution through 2010 and beyond, but that
is now being repealed by administrative fiat and replaced by an
outmoded, inefficient and counterproductive command and control regime.
And the clear truth is that many of the targets of the current NSR
enforcement initiative are functionally related to routine maintenance,
repair and replacement. They cannot usefully be characterized as major
modifications or boiler or powerplant expansions. Appendix Two delves
into the exact nature of the activities at issue here.
The last component of effective enforcement--a desire to embrace
outcomes over mere numbers of cases--is again often missing in today's
approach to enforcement. Of course, current enforcement efforts are not
without their traditional numerical successes. Indeed, EPA released
data on its enforcement and compliance assurance results earlier this
year, which included ``record-setting amounts of money violators have
committed to environmental cleanups and restoration, and for projects
to protect the environment and human health beyond injunctive relief,
and to record penalty assessments.''\10\
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\10\ U.S. EPA, fiscal year 2001 Enforcement and Compliance Results
(Jan. 31, 2002), available at: http://es.epa.gov/oeca/main/2001eoy/
index.html.
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Despite this numerical success, Administrator Whitman has
recognized that such numbers are not the sole relevant benchmark .
``With our State and local partners, we set a high priority on areas
that posed serious threats to health and the environment,'' said EPA
Administrator Christie Whitman. ``The Administration is determined to
actively pursue those who fail to comply with the law while working
closely with the regulated community to find workable and flexible
solutions.''\11\ Clearly then, there is growing recognition that it is
important to prioritize enforcement; to target areas of greater
environmental reduction; and to work cooperatively toward solutions.
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\11\ Id.
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Perhaps it is Administrator Whitman's experience as a Governor that
has led her to this conclusion. We should remind ourselves that the
number of Federal enforcement actions are not the sole indicators of
success. In fact, 2 years ago, the U.S. Congress commissioned the
Environmental Commission of the States to examine relevant differences
and interrelationships between Federal and State enforcement actions.
ECOS reported that in 1 year alone, States passed over 700
environmental statutes for which there were no Federal counterparts.
However, Federal statistics collected by EPA do not count enforcement
efforts undertaken by the States in reference to these actions.\12\
Indeed, of the universe of all enforcement actions undertaken by both
the States and EPA, States alone conducted about 90 percent.\13\
However, the great majority of these actions are undertaken in a spirit
of cooperation and compliance assurance. ECOS concluded:
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\12\ The Environmental Council of the States, State Environmental
Agency Contributions to Enforcement and Compliance (April 2001), at 9.
\13\ Id. at 14.
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``Many State environmental leaders do not believe that their
primary goal is just to conduct enforcement actions. It is more
important to assure compliance, and more important still to improve
environmental quality and public health. For this reason, States have
been leaders in developing `compliance assistance' programs.''\14\
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\14\ Id. at 10.
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But, in any event, it is curious and misplaced criticism to look at
elements such as numbers of cases and workyears of budget allocation as
reflective of actual realities. If it is to succeed in moving the
needle toward additional compliance, enforcement programs must be less
adversarial and of greater real assistance. As one State regulator put
it, ``the true measure of successful enforcement is in quantifiable
improvement in our environment. Improved natural resources, not fines,
must be the primary objective of any effective environmental policy.''
She concluded: ``Allowing States to establish, develop, and implement
environmental improvement policies is critical to their autonomy and
the health of the environment. Heavy fines simply encourage litigation
and slow environmental progress.''\15\
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\15\ Becky Norton Dunlop, Environmental Enforcement: Supporting
State Efforts to Encourage Voluntary Compliance at http://www.adti.net/
html--files/reg/dd/dddunlop.htm
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the price of failure: the case of nsr clarification
EPA's reinterpretation is not only flawed as a matter of law, but
it also undermines our energy supply, environmental protection and
workplace safety. Because NSR is a costly and time-consuming process,
EPA's current position discourages utilities from undertaking needed
maintenance projects. This makes plants more reliant on deteriorating
components, resulting in less efficient, less reliable and higher
emitting power generation. For example, the efficiency of currently
available steam boiler equipment deceases over time as plant components
deteriorate. Boiler tubes, in particular, are subject to very harsh
temperature, pressure, and chemical conditions, and leaks result.
Short-term fixes include patching tubes where there are leaks, but
eventually whole sections begin to wear out and must be replaced if the
plant is to continue to operate. Yet EPA's reinterpretation of NSR
could have such a routine and necessary activity declared non-routine.
There are 300,000 megawatts of coal-fired generating capacity which
is 55 percent of all electricity generated in the United States.
Approximately 1,200 coal-fired generating units are in service. These
generating units involve two distinct sets of operations: (1) a steam
cycle (e.g., the boiler and related equipment), and (2) the turbine
cycle (where the electricity is generated). In the past few years,
there have been some very exciting innovations in the turbine
technology area. For example, just one type of efficiency improvement
project, the so-called Dense-Pack which enhances the efficiency of
turbine blades, can result in a very significant improvement in the
efficiency with which steam is turned into electricity.
A more efficient turbine results in more electricity output from
the same steam input, with no greater fuel use. For example if one
assumes that most generating units could improve efficiency by between
2 percent and 4 percent (a very conservative estimate, based upon the
actual operating experience of several units which have installed the
Dense-Pack technology), this would mean an additional output of 6,000-
12,000 megawatts of power in the near term, with significant decreases
in emissions per unit of fuel burned. This increase in available
installed capacity is the equivalent of building 20-40 new plants of
300 megawatts each with no new emissions. We should recall that the
very definition of pollution is inefficiency; getting more electrons
out of less coal is the best way to prevent pollution.
Last, we should be clear that many of our colleagues in organized
labor support the notion that the NSR program should be clarified in
order to allow for sufficient routine maintenance activities. The
greater the incentive for maintenance, the safer our work environment
will be. Attached for the subcommittee's review as Appendix Three is a
statement offered by the International Brotherhood of Boilermakers at
EPA's regional conference on NSR held last summer.
______
APPENDIX ONE
Electric Reliability Coordinating Council
White Paper on Clarification of New Source Review
Summary
EPA's NSR (``New Source Review'') rules, which for 30 years have
been consistently applied only to new greenfield sources or major
modifications of existing sources, are now being reinterpreted without
any rulemaking change and applied to routine repair, replacement and
maintenance activities at all existing sources, causing major
disruption in routine maintenance schedules, curtailing power output,
and dismembering whole Titles of the Clean Air Act. The rationale for
the radical shift in interpretation is in the allegation that utilities
are by illicit maintenance keeping afloat old plants that were
``grandfathered'' from any CAA controls and that are now threatening
the nation's health. But the 1990 CAA Amendments mandated sweeping
reductions for all power plants regardless of age through the use of
highly efficient market incentives. The 1990 Act thus established a
flexible market-based system that is working very efficiently to drive
down pollution through 2010 and beyond, but that is now being repealed
by administrative fiat and replaced by an outmoded, inefficient and
counterproductive command and control regime.
i. how did we get here?
The CAA, which has produced dramatic reductions in air pollution
over the last three decades despite explosive economic growth, operates
through two approaches. The first approach develops national health and
environmental standards for the States to apply to the existing sources
in their jurisdictions. DOE reports that the utility industry alone has
spent more than $30 billion to achieve compliance with these health
standards.
The second approach applies the best current technology to new
sources and major modifications of old sources that increase pollution
levels where inclusion of such technology can be integrated in an
efficient manner without highly disruptive retrofitting. The purpose is
to prevent new pollution by new plants, both to preserve air quality in
areas that attain health standards, and to avoid complicating ongoing
plans to clean up existing plant and equipment in areas that do not.
Because of delays and regulatory difficulties primarily associated
with ozone attainment and a need to address acid rain not previously
regulated, the Congress enacted the 1990 CAA Amendments (``1990 CAAA'')
to impose a sweeping array of new pollution reductions on power plants
(and other pollution sources as well). These new programs included the
acid rain program of Title IV, which mandates a 50 percent reduction in
SO2 by 2010, and the interstate transport provisions of Title I, which
are now being implemented to impose additional NOx controls in
Midwestern power plants that may themselves be located in attainment
areas, but that send pollution through tall smoke stacks to the
neighboring States.
These new programs adopt a different--and highly successful--
approach that assigns and limits the absolute number of tons a plant
can emit, leaving to the plant the decision as to how to reduce its
tons, rather than assign a particular technology to the plant which it
must build. Because the preexisting NSR program is technology-based,
rather than ton-based, EPA issued a rulemaking in 1992 to reconcile the
old with the new, as described more fully below. It is this 1990 CAAA
and 1992 rulemaking which EPA is now blatantly violating--by, for
example, forcing utilities to accelerate reductions much faster than
those mandated by Title IV of the 1990 CAAA.
As indicated above, NSR was intended primarily to apply to new
sources and can also apply to existing plants only when a large
industrial source of air emissions, a refinery or a power plant makes a
non-routine physical or operational change that results in or causes an
emissions increase.
Over the last thirty years, EPA's regulations and practice have
excluded from NSR all ``routine maintenance, repair and replacement''
activities undertaken by power plants and other industries.
Additionally, EPA surveyed utility maintenance projects, including
``life extension projects,'' in the early 1990's and concluded that
those did not trigger NSR. EPA also has published guidance in the
Federal Register defining what was routine by reference to the standard
practices of the relevant source category, in this case the utility
industry. Likewise, EPA's regulations specifically exclude any
increases in emissions associated with operating a facility more hours,
unless such an increase is prohibited by a federally enforceable permit
condition.
EPA's practices interpreting the NSR rule were explicitly described
to Congress by then-EPA Administrator Reilly and other Agency officials
when Congress was considering the Clean Air Act Amendments of 1990. One
of the reasons Congress adopted the Acid Rain provisions of Title IV to
reduce SO<INF>2</INF> by 50 percent (10 million tons) was because
utility units typically operate for 65 years or longer without major
modification and the NSR program would not obtain equivalent
reductions. To help facilitate cost-effective compliance by the utility
industry with both the ton-based 1990 CAAA and the pre-existing
technology-based NSR program, EPA, after an extensive notice and
comment process in 1992, promulgated a rule which explicitly laid out
all of the NSR procedures applicable to the utility industry and
confirmed that ``pollution control'' projects would not trigger NSR.
In 1996, EPA initiated a rulemaking to revise the 1992 NSR rule,
but never finished it. Instead, in 1999, EPA commenced a major
enforcement initiative against virtually every coal-fired utility plant
in the country for repair and replacement activities undertaken over
the past 20 years. Under EPA's reinterpretation, virtually every
maintenance, repair or replacement project undertaken by any utility
plant could be considered non-routine. Any project that increases
availability or efficiency or corrects problems causing forced shutdown
of plants potentially triggers NSR. EPA abandoned its simple test for
determining when maintenance practices are routine--common industry
practices--and now applies a multi-factor (more than 20 different
factors) weighing and balance test that only it can perform with any
sort of regulatory certainty. Amazingly, even installation of pollution
control equipment by utilities may now be viewed as an NSR-triggering
event.
Whatever policy merits EPA believes justify its new position on NSR
applicability, EPA's efforts to achieve this through enforcement
actions against utilities for projects undertaken decades ago is
inconsistent with current law. If EPA believes this NSR
reinterpretation is correct, it should only apply it after notice and
comment rulemaking or ask Congress for new legislation to revise the
1990 CAAA.
In justifying its enforcement actions, EPA claims that its sole
goal is to avoid emission increases by power plants operating more
hours than in the past. This point is so important that a more detailed
explanation is in order. Under the Clean Air Act provisions, every
power plant in the country is allowed to emit a certain quantity of
various regulated pollutants, of which NOx and SOx are the two key
ones. Each utility plant has a legally mandated emission rate--a
maximum amount of pollution that can be emitted per hour, per day, per
month, or even annually, depending upon air quality and other
consideration. But, any time a plant slows down because of a
maintenance problem, it will necessarily be able, once repaired, to
operate more hours--and emit more--than it did during the problem
period--even the emissions are well within the limits spelled out in
the State SIP and the Federal reductions required by Title IV. These
various limits are spelled out in permits held by utility plants or in
State implementation plans, and they reflect EPA-prescribed public
health-driven ambient standards. These limits cannot be breached by
power plants under any circumstances, and there is no claim that any of
the plants subject to the EPA enforcement did exceed the permitted
limit of emissions. However, every unit must be prepared to operate
more hours within their tonnage limits in order to meet customer
demand.
EPA's definition of an emission increase is artificial and
arbitrary. Power plants operate under extremely harsh conditions; every
several years, as the plant equipment deteriorates, the plant's
efficiency, availability and reliability go down. Eventually, the plant
operator performs a set of routine maintenance procedures to restore
and maintain the plant's efficiency, availability and reliability. To
emphasize, throughout all of these changes, the plant never increases
or exceeds its legally binding and public health-driven emission
limits. EPA, however, compares a plant's actual emissions at the time
it was operating in the recent past before a maintenance procedure with
its future potential emissions following that procedure, assuming that
the plant will, as a result of the project, operate every hour of every
day in the year at maximum output. In other words, EPA's methods always
predicts an emission increase even though none may occur, and even
though the plant may not under any circumstances exceed the CAAA's
mandated reductions.
ii. epa's reinterpretation discourages needed maintenance procedures
and reduces generating capacity
EPA's reinterpretation is not only flawed as a matter of law, but
it also undermines our energy supply. Because NSR is a costly and time-
consuming process, EPA's current position discourages utilities from
undertaking needed maintenance projects. This makes plants more reliant
on deteriorating components, resulting in less efficient, less reliable
and higher emitting power generation. For example, the efficiency of
currently available steam boiler equipment deceases over time as plant
components deteriorate. Boiler tubes, in particular, are subject to
very harsh temperature, pressure, and chemical conditions, and leaks
result. Short-term fixes include patching tubes where there are leaks,
but eventually whole sections begin to wear out and must be replaced if
the plant is to continue to operate. Yet EPA's reinterpretation of NSR
could have such a routine and necessary activity declared non-routine.
A plant operator typically will accept some level of deterioration
in efficiency for a short period of time but must eventually undertake
the repair and maintenance necessary to regain lost efficiency and to
maintain unit availability. The timing of these projects depends in
part on the demands being placed on the power plant to operate to meet
energy supply needs. Unit unavailability can seriously impair a
utility's ability to meet customer demand and nearly always results in
running less efficient units. Operating inefficient units increase the
amount of pollution emitted. Under the EPA Office of Enforcement and
Compliance Assurance's new interpretation of the NSR rules, it is these
projects, designed to maintain efficiency and availability, that are no
longer regarded as ``routine.'' EPA then assumes the unit will operate
more hours than before the project and further assumes that the
project, rather than customer demand, weather, or other unit outages,
causes this increase. Once EPA thus determines that NSR will be
triggered, the unit cannot even begin to proceed with the project
without either going through the lengthy NSR permitting process, which
takes a year or more, or without ``capping'' operations at historical
levels. Thus, the unit must either wait or derate. Either alternative
can have significant adverse consequences for the reliability of the
country's electric supply. Waiting can idle a unit during peak demand
for 12-24 months, more if intervenors challenge the permitting.
Derating effectively confiscates capacity, even when the unit is
permitted to operate at maximum output year-round.
Over the next 3-5 years, thousands of megawatts of existing
generating capacity will be lost if companies are not able to undertake
these routine maintenance and repair projects, or if companies must
accept caps on utilization to avoid lengthy NSR. In the longer term,
EPA's new position would involve the loss of an even greater number of
megawatts. The result of EPA's reinterpretation will be the decrease in
available installed power plant capacity at a time when we already have
a supply shortage--something this Nation, and the West in particular,
can ill afford.
iii. epa's reinterpretation discourages efficiency improvements
There are 300,000 megawatts of coal-fired generating capacity which
is 55 percent of all electricity generated in the United States.
Approximately 1,200 coal-fired generating units are in service. These
generating units involve two distinct sets of operations: (1) a steam
cycle (e.g., the boiler and related equipment), and (2) the turbine
cycle (where the electricity is generated). In the past few years,
there have been some very exciting innovations in the turbine
technology area. For example, just one type of efficiency improvement
project, the so-called Dense-Pack which enhances the efficiency of
turbine blades, can result in a very significant improvement in the
efficiency with which steam is turned into electricity.
A more efficient turbine results in more electricity output from
the same steam input, with no greater fuel use. For example if one
assumes that most generating units could improve efficiency by between
2 percent and 4 percent (a very conservative estimate, based upon the
actual operating experience of several units which have installed the
Dense-Pack technology), this would mean an additional output of 6,000-
12,000 megawatts of power in the near term, with significant decreases
in emissions per unit of fuel burned. This increase in available
installed capacity is the equivalent of building 20-40 new plants of
300 megawatts each with no new emissions.
As an example, this type of efficiency improvement, if installed by
the approximately 1,000 utility units (out of some 1,200 existing coal-
fired utility plants) that can be most easily retrofitted with Dense-
Pack technology, would reduce criteria pollutants that NSR was meant to
address (NOx and SOx) substantially.
However, under EPA's reinterpretation of its NSR rules, the
installation of even this type of beneficial technology requires an
elaborate, expensive and time-consuming permitting process, which
results in the imposition of additional costly control technology
requirements on existing plants, and therefore discourages the
installation of new and more efficient technologies.
iv. conclusion
Overall, the effect of EPA's recent position is to block routine
maintenance, repair and efficiency improvement projects that could
immediately expand generating capability without increasing fuel
burning and will decrease by a significant percentage the total
available installed capacity through caps on operations. Stated
differently, EPA's reinterpretation of NSR is tantamount to shutting
down dozens of utility units every year at a time when electricity
supply is already so short as to be unreliable in many areas.
______
APPENDIX TWO
The True Nature of Repair and Replacement
This document provides more detail on major repair and replacement
projects that must be undertaken at utility generating stations, in
order to keep those facilities operational. The utility industry
generally plans for a major outage at each generating unit at a regular
interval, which has changed over time. During the 1970's and earlier,
annual outages were the norm, and each unit would be removed from
service for several weeks at a time to undertake a comprehensive boiler
inspection and repair outage. Currently such outages occur on schedules
ranging from 18 months to 3 years, and they therefore last longer.
Turbine overhauls are planned on longer intervals, approximately every
five to 8 years, and generally last even longer due to the nature of
the work required. In the years when turbine overhauls are scheduled,
more extensive boiler work can also be scheduled to occur.
During each major outage, work will be conducted on one or more of
the projects discussed below. For each, this document provides examples
of the types of major repair and replacement projects that are
conducted in the industry, a discussion of the consequences of not
undertaking the project, and information on typical project costs.
There are many smaller repair and replacement projects that take place
in each of these projects that are not discussed here, given our focus
on major repair and replacement projects that are common in the utility
industry. These smaller projects will typically be performed during
forced outages as time permits, during shorter scheduled outages on
weekends, or during the planned outages scheduled for the more
significant projects discussed in this paper. These smaller projects
add to the overall capital costs incurred for repair and replacement
projects at an individual unit over time.
boiler tube assemblies
a. Project Description
Boiler tube assemblies include superheaters, reheaters, economizers
and boiler walls and floors. These tube assemblies may also be known as
division walls, wing walls, waterwalls or steam generation tubes.
Boiler walls consist of rows of tubes mounted along (and essentially
forming) the interior walls of a boiler. Superheaters, economizers and
reheaters are typically bundles of tubes which hang from the ceiling or
sides of a furnace into the hot combustion gasses. The heat in the
furnace is thereby transferred to the water or steam passing within
each tube.
Boiler tubes function in extreme conditions. These tubes are not
exotic alloys and therefore are expected to experience wear and
periodic failure. Corrosion and erosion, in addition to temperature and
pressure-related stresses, wear or weaken the tubes. When boiler tubes
leak, those tubes, and typically surrounding tubes, must be repaired or
replaced. If deterioration is limited to a few tubes, repairs can be
effected by cutting out the leaking section of tubes and welding in
place a new tube section. More extensive deterioration, including
deterioration anticipated based on the results of nondestructive
analysis of the boiler walls, requires replacing an entire tube
assembly. When materials that can better withstand the destructive
environment of the boiler and can reduce the susceptibility of the
tubes to wear are available, it is common practice to use those
materials to the extent it is cost-effective. Similarly, improvements
in tube arrangement in the boiler are common as the individual air/gas
flow patterns of a boiler are established. Finally, the headers that
collect the water or steam and feed it into the tube assemblies and the
structural components associated with the tube assemblies are also
subject to deterioration due to the same failure mechanisms.
b. Consequences of Forgoing Project
Once a tube develops a leak, the unit can only operate for a few
hours to a couple of days, depending on where the leak is in the boiler
and whether the leak endangers the integrity of other tubes or
components. After that short time, the unit must be shut down in order
to repair or to replace the leaking tubes, because tube repairs must be
conducted off-line after the boiler has cooled. Replacement of an
entire tube assembly becomes necessary as anticipated or projected
failures increase. Forgoing replacement severely jeopardizes the
reliability of the unit by requiring that it be repeatedly shut down in
response to tube leaks. Ultimately, tube leaks can require that the
plant be shut down. Foregoing replacement also jeopardizes the
integrity of other tubes and components, creating a risk of massive
boiler failure that would endanger employees and prevent the boiler
from being operated to supply electricity.
c. Other Information
Repair of leaking sections and wholesale replacement of tube
assemblies are common projects. Replacing tube assemblies can cost up
to $40/kw on a large coal-fired boiler, and even more on a smaller
boiler. A census of repair and replacement practices at coal-fired
utility boilers shows that entire tube assemblies have been replaced by
almost every boiler in the industry, with some replacements occurring
as early as 5 years after commercial operation.
air heaters
a. Project Description
Electric steam generating plants use air heaters to pre-heat the
combustion air to improve the combustion process and the overall
efficiency of the unit. Generally, air heaters receive hot flue gas
passing through the economizer and cooler combustion air from the
forced draft fan. Air heaters transfer the heat from the hot flue gas
to the cooler combustion air. Regenerative air heaters perform this
heat transfer through the use of air heater tubes or baskets (which are
comprised of rows of metal plates with corrugations and undulations
designed to facilitate flow paths and heat transfer).
Condensation and the presence of ash can corrode, erode or plug air
heater baskets or tubes. While washing and soot-blowing (see project
family #10) may address short-term plugging issues, corrosion of the
metal surfaces and the resulting losses in heat transfer require the
replacement of air heater baskets or tubes at a frequency ranging from
5 to 15 years.
Air heaters also suffer from the erosive effects of ash and other
materials, especially if gaps in air heater seals are worn or weakened.
This may lead to the replacement not only of air heater tubes and
basket layers, but also of structural elements, seals and gaskets. When
air heater tubes or basket layers and associated equipment are
replaced, it is standard practice to consider improvements in plate
configuration, in materials or in the corrugation or undulation of the
plates, or in the arrangement of tubes to account for the specific
requirements of a particular boiler.
b. Consequences of Forgoing Project
If air heater tubes, baskets and other air heater equipment are not
replaced when they deteriorate, the plant loses efficiency because the
incoming combustion air is not warmed sufficiently. As the air heater
becomes further plugged or corroded, the unit is further limited in its
capability to generate electricity because less air and exhaust gases
can pass through the air heater. As the efficiency of the unit
decreases, the amount of emissions per unit of electricity generated
increases. If most or all of the air heater is plugged, no air can flow
through, and the unit cannot operate. Ultimately, if not replaced,
pieces of the air heater that have been eaten away could be sucked into
the boiler, causing damage and forcing the boiler to shut down.
c. Other Information
The replacement of air heater basket layers, tubes and the seals
around the air heater are common projects. Replacing tubes and basket
layers can cost up to $6/kw on a large coal-fired boiler. As with other
components, costs in $/kw tend to be higher on smaller boilers. A
census of repair and replacement practices at coal-fired utility
boilers shows air heater baskets/tubes have been replaced by over 80
percent of the units surveyed.
fans
a. Project Description
A fan consists of a bladed rotor, or impeller and a housing to
collect and direct air or gas. Many boilers operate with both forced
and induced draft fans--also known as ``balanced draft.'' These boilers
use the forced draft fan to push air through the combustion air supply
system into the furnace. The induced draft fan is on the other end of
the furnace, and sucks combustion gases through. In this way, the two
fans maintain the pressure of the boiler in ``balance'' or at
atmospheric pressure or slightly negative pressure.
Other boilers were designed to operate at positive pressure, using
only a forced draft fan and no induced draft fan. However, this design
forces heat and ash through the joints of the boiler and ducting
system, resulting in employee health, safety and other concerns
stemming from the dusty environment. These include increased equipment
maintenance needs due to the high dust levels. Accordingly, many
companies with positive pressure boilers have replaced the forced draft
fan system with a balanced draft fan system to correct these
maintenance and employee safety problems.
Another kind of fan necessary to pulverized coal-fired boiler
operation is a primary air fan. Primary air fans supply coal
pulverizers with the air needed to dry the coal and transport it to the
boiler. Primary air fans may be located before the air heater (cold
primary air system) or downstream of the air heater (hot primary air
system).
In some cases, gas recirculation fans are used for controlling
steam temperature, furnace heat absorption and slagging of heating
surfaces. They are generally located at the economizer outlet to
extract gas and re-inject it into the furnace.
Fans rotate at high speeds, and experience erosion and cyclic
fatigue. They therefore need to be replaced periodically. Fans (e.g.,
induced draft fans) may also be subject to high temperatures, erosive
ash, and corrosive gases.
b. Consequences of Forgoing Project
Poor fan operation translates immediately and directly to reduced
boiler load and less production of electricity. If a large fan fails,
it can shut down the unit. Failure of small fans in a multiple system
will result in reduced boiler load. Fan systems that fail or that cause
maintenance and employee safety problems must be replaced for the
boiler to continue to operate.
c. Other Information
Common replacement projects include balancing and blade
replacements, and wheel, motor and rotor replacement. Fan replacement
projects can cost up to $20/kw. Replacement of a forced draft fan
system with a balanced draft fan system can cost up to $70/kw. A census
of repair and replacement practices at coal-fired utility boilers shows
that fans have been substantially replaced at more than 70 percent of
the units in the industry.
mills/feeders
a. Project Description
Feeders deliver raw coal from the coal bunker to the pulverizer
(also called ``mills''). Coal crushers and conditioners are used in
some cases to prepare the coal for the mills. Coal pulverizers then
grind coal to a fine powder, suitable for efficient combustion in the
furnace.
Various types of feeders are used in the industry, including
gravimetric feeders, volumetric feeders, and bucket-type feeders.
Replacing volumetric feeders with technologically superior gravimetric
feeders is common in the industry, in order to improve the consistent
measurement of coal added to the mills.
Pulverizers are manufactured in several designs. Some pulverizers
use metal balls that roll around a metal track and crush coal. Other
pulverizers use rollers to crush the coal. Both designs contain motors
and gear boxes to drive the grinding mechanism. Pressurized air created
by seals and air fans keeps the fine coal dust out of the motor and
gears. Nevertheless, fine coal dust is present and causes continual
wear and eventual failure of mills.
The coal is sorted within the pulverizer and delivered to the
burners by the primary air fan. In some designs, exhauster fans then
deliver the pulverized coal through pipes to the burners for
introduction into the furnace. The ``classifier,'' located at the top
of the pulverizer, contains openings through which fine coal passes on
its way to the burners; coarser particles hit the classifier and fall
back to the grinding mechanism.
The major causes of wear and deterioration in pulverizer systems
are abrasion due to exposure to hard minerals such as quartz and pyrite
found in raw coal, and erosion due to the stream of solids that strikes
pulverizer surfaces. Given the constant wear experienced in a
pulverizer, repair and replacement of pulverizers and related equipment
is essential to continued operation of the boiler.
The components that experience direct, constant wear and that
require periodic replacement include rollers, tables, and balls;
classifiers; bearings in rollers and the shaft; and seals and motors.
Within the feeder system, belts, flow control devices, and associated
piping must periodically be repaired or replaced. Eventually, abrasion
and erosion of the pulverizer may become so severe that the pulverizer
or mill internals must be replaced.
b. Consequences of Forgoing Project
The obvious consequence of mill/feeder failure is the reduction of
the capability of the mill to deliver coal to the boiler, and hence of
the unit to generate electricity. As less fuel is available to the
boiler, less steam can be produced. More subtly, improper mill
performance leads to combustion problems that not only damage other
equipment but that increase emissions. For example, coal which remains
too coarse will not combust completely, and will cause a loss of
efficiency and an increase in particulate emissions. Some equipment in
a mill or feeder cannot be repaired effectively more than a few times
because the mill parts then will not work together properly.
Replacement of the mill is then necessary.
c. Other Information
Replacing wear parts in the interior of the mill can cost up to $2/
kw, and replacement of a mill can cost up to $5/kw. A census of repair
and replacement practices at coal-fired utility boilers shows that
pulverizer mills have been replaced or substantially replaced (e.g.,
the entire grinding zone) at more than 50 percent of the units in the
industry.
turbines and generators
a. Project Description
In the steam turbine at a modern power plant, superheated steam
from the boiler is exhausted over turbine blades (these look like the
fanjet blades in a jet engine). Because the steam is very hot (about
1000EF), enters at very high pressure (2400 to 3600 pounds per square
inch), and contains impurities, turbine blades experience substantial
wear and tear. For example, there are impurities in the steam--like
little pieces of sand--hit the turbine blades at extremely high
velocities and damage the blades by pitting them. When turbines are
inspected, some blades or rows of blades (e.g., the ``high pressure''
or HP section) may need to be replaced.
When blades are replaced, the manufacturer typically offers a new,
more efficient design or better alloys as the result of R&D or new,
more durable materials. Indeed, the older, less efficient design may no
longer be available. Use of more efficient turbine blades also allows
the turbine to use a smaller amount of steam to produce the same amount
of electricity, thereby decreasing emissions per megawatt of power
output. Other turbine components, including nozzles, diaphragms and
rotors, are also commonly replaced when they deteriorate or fail.
Generator rotors and stators are also subject to failure. The
generator rotor turns (is rotated) inside the stator. Both the stator
and the rotor are typically made of steel and have ``slots'' that run
their length. Both the rotor and the stator have windings, that is,
wires that fit into the slots. A direct current is applied to the rotor
winding, which turns this large piece of steel into an electromagnet.
The stator winding is a conductor (typically copper). When an
electromagnet is turned relative to a conductor, it produces a current
in the conductor. The current produced in the stator winding is the
electricity made by the generator, which is then sent to the
transmission grid.
The windings are surrounded by insulation. This insulation can wear
out due to heat, electrical and/or vibratory stress (e.g., rubbing on
adjacent insulation.) Also, insulation can deteriorate due to exposure
to contaminants such as moisture and oil, particularly from the cooling
mechanism. If the wear is extensive, the entire winding itself must be
replaced.
Finally, the steam turbine shell may develop defects due to
stresses created by high temperatures and high pressures. If the
turbine shell develops defects, it is commonly repaired or replaced at
the same time the turbine blades are replaced.
b. Consequences of Forgoing Project
Replacement of damaged turbine blades is a necessity both from a
reliability and from a safety standpoint. Damaged, rotating turbine
blades can break off and fly through the turbine casing at extremely
high velocity, creating the risk of serious injury or death and
extensive damage to the power plant. To avert this catastrophe, turbine
blades are inspected and replaced if wear and tear indicates they may
fail.
Besides the employee safety issue, a broken blade can damage other
portions of the generating unit, resulting in prolonged unit shut-down.
Even prior to failure, deteriorated blades reduce the efficiency with
which steam is turned into electricity, thereby reducing the electric
output of a generating station and increasing the amount of emissions
per unit of electricity produced.
Worn windings and insulation in the generator stator and rotor
decreases the efficiency of the generator to convert mechanical energy
to electrical power. This translates to increased fuel consumption and
increased emissions per unit of electricity and decreases the capacity
of the unit to produce electricity. Failed insulation also presents a
fire hazard, and can result in faults that prevent the generator from
operating at all.
c. Other Information
Common projects include the replacement of turbine blade rows or
sections and turbine rotors. Moreover, a generator rotor or stator is
rewound periodically in the life of a unit. Turbine blade and turbine
rotor replacement projects can cost up to $20/kw, while shell
replacements can cost up to $60/kw. A census of repair and replacement
practices at coal-fired utility boilers shows that more than 90 percent
of the units in the industry have replaced turbine blades or rotors.
condensers
a. Project Description
Once steam has passed through the turbine, it is condensed back to
water, which is cleaned, pumped again to high pressure and returned to
the boiler. The condenser provides the heat transfer necessary to
convert the spent steam into water.
The condenser consists of a large chamber containing bundles of
long, thin tubes. The tubes contain flowing water (typically river
water or some other source of cooling water). Low temperature steam
exiting the turbine at pressure approaching a perfect vacuum is
directed into the chamber across the outside of the bundles of tubes,
which are arranged perpendicular to the steam path. As the steam flows
over the outside of the tubes, the heat from the steam is transferred
to the cooling water inside the tubes. As enough heat is removed from
the steam, the steam condenses to water.
The combination of steam constantly passing across the outside of
the condenser tubes and water (filtered, but typically untreated)
passing through the inside of the tubes leads to corrosion and erosion.
Also, the interior of the tubes is subject to plugging and biological
fouling. Despite constant efforts to clean the tubes, tubes eventually
become partially or entirely plugged and no longer provide heat
transfer. Also, if a condenser tube leaks, untreated river water will
enter the steam path due to the vacuum on the steam side and will
contaminate the high purity steam.
Short-term repairs include intentionally plugging a leaking tube.
When numerous tubes have become plugged, it is necessary to replace an
entire set of condenser tubes (also known as retubing the condenser).
When new materials designed to better withstand the destructive
environment of the condenser are available, it is typical to use the
improved materials.
b. Consequences of Forgoing Project
Because the steam side of the condenser is at a vacuum, when a leak
occurs, the dirtier cooling water flows into the steam side. This
necessitates shutting down the unit so as not to allow the untreated
water to damage the boiler and the turbine. The leaking condenser tubes
are then plugged. As tubes are plugged, the unit becomes less
efficient, meaning that its ability to generate electricity declines
and more emissions are associated with each unit of electricity
produced. Condenser tube leaks eventually become so significant that
the unit is constantly being shut down to plug tubes. Eventually, the
condenser must be retubed or the unit can no longer operate.
c. Other Information
The replacement of entire tube bundles is common, and such
replacement projects cost up to $10/kw at larger boilers. A census of
repair and replacement practices at coal-fired utility boilers shows
that more than 60 percent of the units in the industry have replaced
condenser tubes.
control systems
a. Project Description
Careful monitoring and control of operating conditions at a coal-
fired electric steam generating unit are necessary to insure safe,
efficient, and reliable operation of the unit. Control and monitoring
equipment at a unit consists of three major (core) systems: (1) boiler
controls; (2) turbine controls; and (3) balance of plant management.
Instruments and controls have advanced rapidly in the past two decades
to provide greater operator knowledge and ability to optimize unit
performance and to control emissions. For this reason, it is typical to
replace out-dated benchboard type switches, lights, gauges, recorders,
and manual/automatic stations with digital, computerized controls with
touch screen monitors.
b. Consequences of Forgoing Project
Because controls help manage all aspects of combustion, unrepaired
or outmoded controls will prevent the boiler from operating as
efficiently and safely as is possible with modern controls. Moreover,
because outmoded controls cannot manage a unit with the same efficiency
as modern controls, failure to replace outmoded controls will result in
higher emissions associated with startup, shut-down and combustion
staging. Often, replacement parts for outmoded controls may simply be
unavailable.
c. Other Information
The replacement of pneumatic controls with solid state,
computerized or automated controls has occurred at most units, and will
continue to occur as technology improves. Such projects can cost up to
$10/kw on larger units, and $40/kw on smaller units.
coal and ash handling
a. Project Description
Coal handling equipment includes everything involved in unloading
the coal from its transportation device (a railcar, barge or truck),
storing it in a pile, and then conveying it to the plant so that it
arrives at the feeders. After unloading, the coal is typically
transported to a storage pile by a conveyor belt and reclaim system.
While on the pile, the coal is usually managed by bulldozer, and then
pushed onto a conveyer belt feeder. Sometimes a crusher in the coal
storage area ``pre-crushes'' the coal. The coal travels by conveyor
belt to the plant, where it is distributed among a series of bunkers by
the tripper cars. The bunkers sit above and supply the feeders.
Much of the coal handling system is exposed to the weather.
Moreover, coal is a hard substance that wears away the handling
equipment. For example, conveyor belts, the motors that drive them, and
structural equipment wears and corrodes over time, and this equipment
is therefore commonly repaired and/or replaced. The rate at which the
coal handling equipment deteriorates is influenced by the type of coal
that is burned, with the result that variations in the coal that is
burned in a boiler can lead to accelerated deterioration or
obsolescence of existing coal handling equipment. Other factors that
contribute to deterioration include local climate and proximity to salt
water.
Once coal is combusted, the ash that results from the combustion
process is collected in hoppers (bottom ash) or by pollution control
equipment (fly ash). Once collected, the ash is recycled or treated and
stored in ash storage ponds or landfills. The equipment for collecting,
transporting and storing ash is subject to deterioration resulting from
corrosion, abrasion and exposure to the environment.
b. Consequences of Forgoing Project
If coal handling equipment is not repaired or replaced when it
deteriorates, fuel cannot be fed to the units and the plant must reduce
load or eventually be shut down. Replacements are necessary when
deterioration is so severe that repairs would be ineffectual, or where
repairs would not resolve reliability problems. If ash handling
equipment and disposal systems are not subject to constant maintenance
and repair, the boiler will have to reduce load or cease operation
until the ash it generates can be properly handled.
c. Other Information
Common projects involving coal handling equipment include the
replacement of conveyer belts and motors, pre-crushers, barge and rail
unloaders, and tripper cars. Such projects can cost up to $4/kw. Common
projects involving ash handling equipment can cost up to $15/kw.
feedwater heaters
a. Project Description
Once the turbine has finished with the steam, the steam is
condensed into water in the condenser and sent back to the boiler for
reuse. Between the condenser and the boiler are a series of low
pressure and high pressure feedwater heaters that gradually raise the
temperature of the feedwater prior to returning it to the boiler, where
it is then converted to steam. The feedwater system includes a
condensate polishing unit (more common on larger, newer units) where
impurities are removed, low pressure feedwater heaters, a deaerator
heater, a boiler feed pump and high pressure feedwater heaters. From
the last high pressure feedwater heater, the feedwater is delivered to
the economizer inside the boiler.
A feedwater heater consists of a shell that covers a densely packed
bundle of U-shaped tubes in which the condensate or feedwater flows. On
top of the shell, there is an inlet for extraction steam from the
turbine. As the condensate or feedwater flows through the tubes,
extraction steam passes over the outside of the tubes and transfers
heat to the water inside the tubes. Condensate or feedwater passes
through the heaters in series, gradually increasing temperature thereby
making the overall unit more efficient.
The feedwater heater system is subject to deterioration due to the
effects of pressure, temperature and corrosion. It is common for tubes
in this system to spring leaks, with the result that the heater must be
bypassed until the unit can be taken off line to conduct repair or
replacement activity. Newer corrosion resistant alloys to reduce
maintenance problems are under constant development.
When leaks are detected, feedwater tubes are typically plugged.
From 10 to 30 percent of the tubes may be plugged in some units,
resulting in a significant reduction in unit efficiency. At some point,
plugging tubes is no longer an option and replacement is necessary.
b. Consequences of Forgoing Project
Failure to plug leaking tubes results in a loss of overall unit
efficiency and reliability. A tube leak therefore requires that the
feedwater heater be bypassed until the unit can be taken off line for
plugging or replacement of the leaking tubes. Plugged tubes cannot be
feasibly repaired, so replacement is necessary once enough tubes have
been plugged. Failure to replace the heater means that the heater must
be removed from service, which can cause significant losses in
efficiency and reduce the capacity of the unit to generate electricity,
increase the emissions from the boiler per amount of electricity
generated, and increase the reliability problems of the other feedwater
heaters.
c. Other Information
Replacing an individual feedwater heater can cost up to $5/kw for a
large unit. A census of repair and replacement practices at coal-fired
utility boilers shows that more than 80 percent of the units in the
industry have replaced feedwater heaters or major tube bundles in the
feedwater heaters.
sootblowers/water lances
a. Project Description
When coal is burned in the boiler, ``ash'' is produced which
adheres to the boiler walls and tube assemblies and to the air
preheater. The buildup of ash immediately reduces the heat transfer
capability of these components which, in turn, means that more fuel is
required to maintain the same load. In the long term, the presence of
ash (slag) will cause tube overheating and boiler tube leaks, and may
completely plug an air preheater.
Sootblowers are mechanical devices used for on-line cleaning of ash
and slag deposits in the boiler, in order to maintain the heat transfer
efficiency and to prevent damage to tube assemblies and other
components. Various types of sootblower are used in a boiler depending
on the location in the boiler, the cleaning coverage required and the
severity of the deposit accumulation. Sootblowers basically consist of:
(1) a tube element or lance which is inserted into the boiler and
carries the cleaning medium (typically steam or compressed air), (2)
nozzles in the tip of the lance to accelerate and direct the cleaning
medium, (3) a mechanical system to insert or rotate the lance, and (4)
a control system.
Acoustic blowers, which rely on sound waves, are also used.
Sootblowers of all designs must function in the harsh environment of
the boiler and are subject to wear due to exposure to high
temperatures, corrosion, and erosion from high velocity particles.
Accordingly, sootblowers are commonly replaced as they wear out. Also,
because the slagging characteristics of a boiler can change over time,
it is common to change the type of sootblower as the slagging
characteristics change or become better understood.
b. Consequences of Forgoing Project
Failure to replace a deteriorated sootblower so that it can
continue to remove soot, ash, and slag, will limit the capacity of the
unit to generate electricity, and will eventually shut the unit down.
Moreover, if boiler tube assemblies are not kept clean, more tube
failures will occur, requiring more frequent shut downs to replace tube
assemblies (see project family #1). Uncontrolled slagging can also
cause catastrophic boiler damage if the accumulated slag falls from the
boiler wall or roof onto the boiler floor.
c. Other Information
Sootblowers damaged from wear have been replaced at most units in
the industry. Replacement of water lances, sonic blowers and related
technology is also common. Such projects can cost up to $9/kw.
burners
a. Project Description
Burners provide the final link between the fuel and combustion air
and the boiler. Burners are specialized tubes or barrels (in the case
of cyclone boilers) which direct pulverized coal (carried by primary
air) and combustion air (or secondary air) into the combustion zone.
Each boiler has many burners. The arrangement and performance of the
burners have a direct impact on the distribution of air, the stability
of the flame in the boiler and the combustion efficiency. These factors
are adjusted by controlling the rate and pattern in which air and fuel
enter the boiler.
For boilers other than cyclone boilers, dampers (driven by attached
linkages) and vanes control the swirl and volume of air, while
restrictors may be used to manage the volume of coal. Each burner
consists of a coal (or other fuel) pipe and nozzle with a nozzle tip or
impeller at the end of the nozzle at the interior wall of the boiler.
Surrounding the fuel nozzle is the windbox, with secondary air passing
through the windbox and into the boiler via a toroidal opening with the
nozzle tip at the center. Accessories such as flame scanners and
lighters are commonly found in the burner assembly.
Burners, particularly the nozzle tips, are required to function in
extreme conditions. Corrosion, erosion and temperature-related stresses
wear or weaken the tips. Further, the combustion zone can extend to the
tip itself, and the high temperatures can effectively destroy the tip.
The damper linkages are subject to high use and may fail from exposure
to the boiler environment. Finally, because burner configuration and
performance play a key role in staging and controlling combustion,
entire burners may be replaced with modernized designs intended to
control the formation of NOx or otherwise improve the efficiency or
completeness of the combustion, thereby reducing emissions.
A cyclone boiler is designed to melt as much ash in the coal as
possible during the combustion process, and then to drain it from the
bottom of the furnace in order to keep molten slag off of the
superheater and other tube assemblies. This design objective is
accomplished by creating a combustion zone outside the main furnace.
These combustion zones or ``cyclones'' are cylindrical barrels attached
to the sides of the main furnace. Crushed coal and air are introduced
into the cyclone in a tangential pattern, in order to create a swirling
motion to promote mixing of the coal and air to ensure complete
combustion of the coal. The introduction of crushed coal and air at
high velocities erodes the cyclone, and the hot molten slag environment
causes corrosion. High temperatures cause metal fatigue and
deterioration of the cyclone.
b. Consequences of Forgoing Project
Failure to replace damaged burners or cyclones reduces the
efficiency of combustion. Moreover, a damaged burners can clog and
create a safety hazard. Unrepaired damper linkages prevent the unit
operator from controlling the volume and spin of combustion air and
will reduce the efficiency of the unit, thereby increasing emissions
for each unit of electricity generated.
c. Other Information
Common projects involving burners include the replacement of
cyclones, burner tips, burner linkages and the wholesale replacement of
burners for low NOx designs. Burners or cyclones have been replaced one
or more times at most units in the industry, at a cost of up to $30/kw.
motors
a. Project Description
There are numerous electric motors in a power plant. For example,
motors are used to drive fans, pumps, conveyor belts, pulverizers, and
so on. All motors have insulation which breaks down over time, causing
the motor to overheat and even short out. Usually, when motors short
out they shut down automatically, but they can even catch on fire or
explode. When motors short out, they can be rewound or, if rewinding is
too expensive, they must be replaced.
b. Consequences of Forgoing Project
Failure to replace or to rewind a damaged motor risks a fire (or
explosion if the motor is near coal dust) if the motor continues
operating. Shutting down the motor means the pump, fan, mill, conveyor,
etc. will no longer operate. This means that the unit must either
operate at a lower capacity or potentially even that the unit must be
shut down.
c. Other Information
It is common to rewind or to replace a motor. Replacement projects
can cost up to $5/kw per motor. A survey of repair and replacement
practices at coal-fired utility boilers shows that it is common in the
industry to replace electric motors.
electrical equipment
a. Project Description
Electrical equipment is used to transmit electricity and make it
usable for electrically powered fans, motors, conveyors, lights, and
numerous other applications in a power plant. There are several types
of electrical equipment, including buses or wires that transmit the
electricity, transformers that convert it into a usable form,
switchgear or breakers that turn it on and off and protect it from
electrical surges. In addition, for motors, there are often motor
control centers and motor starters. Also, the plant itself uses buses,
transformers and switchgear in the process of supplying electricity
from the generator to the grid.
Shorts and overloads can occur in any of this equipment due to coal
dust and the harsh environment of power plants. Damaged equipment is
either repaired or replaced, depending on the severity of the damage.
b. Consequences of Forgoing Project
Replacement of electrical components that have deteriorated or are
damaged due to the harsh power plant environment is necessary to
support the electrical equipment at the power plant. If the electrical
circuits are not operating, the equipment served by that circuit cannot
operate and the unit will be unable to supply electricity at its
previous capacity, if at all.
c. Other Information
Replacement of switchgears, and other electrical equipment
components are very common. Replacement projects can cost up to $9/kw.
pumps
a. Project Description
Pumps are used to convey fluids around a power plant, including
water (condenser circulating pumps) or water containing ash (ash sluice
pumps). Pumps have moving parts. Ash sluice pumps are exposed to
erosive, highly stressful environments. Other pumps, such as boiler
feed pumps, are exposed to extreme temperatures and are expected to
operate at very high pressures. These failure mechanisms lead to
deterioration, which often requires replacement of a pump.
b. Consequences of Forgoing Project
If a pump is not repaired, additional stress is placed on other
pumps in the system, and reliability problems will result. Eventually
(immediately for some pumps) failure to replace certain broken pumps
means that the boiler cannot operate at its design pressure.
c. Other Information
Common projects involving pumps include replacement of boiler feed
pumps and ash sluice pumps. Replacement projects can cost $10/kw. A
census of repair and replacement practices at coal-fired utility
boilers shows that nearly 100 percent of the units in the industry have
overhauled or replaced boiler feedpumps.
piping/ducts/expansion joints
a. Project Description
Pipes are used to carry mass (fluids or fluids containing solids)
through a power plant. Ducts are essentially square pipes that carry
air or flue gas. In an industrial environment like a power plant, pipes
and ducts spring leaks due to the high pressure, high temperature and
corrosive environment. If a section of pipe or duct leaks on an ongoing
basis, the economic choice is to replace that section.
Expansion joints are flexible pieces that connect two sections of
ductwork or piping. They are used because temperature differences cause
different sections of ductwork or pipe to expand and contract at
different rates. Even though expansion joints are designed to move as
the contraction and expansion occurs, they can experience cracks and
separations due to fatigue. If too many leaks occur, they must be
replaced.
b. Consequences of Forgoing Project
Leaking ducts, pipes or expansion joints dilute the power of the
fan or pump. Failure to repair or replace the pipe, duct or joint,
therefore, will prevent the unit from generating electricity at its
design capacity. Moreover, leaks of steam, gasses or fuel present
safety hazards which must be addressed in a timely manner once they are
identified.
c. Other Information
Replacing leaking ductwork, high temperature steam pipes, ash
handling pipes, fuel piping, and expansion joints are common projects.
It is also common to convert from fabric to metal joints or the
reverse, depending upon boiler characteristics. Replacement and repair
projects can cost up to $23/kw.
air compressors
a. Project Description
Air compressors are mechanical devices similar to a pump, except
that they compress air instead of a liquid. Air compressors have moving
parts that are subject to wear. The principal use of compressed air in
steam plants is for pneumatic drives for dampers and valves, system
controls, some types of sootblowers, and power repair hand tools.
b. Consequences of Forgoing Project
Failure to repair the service air system will affect at least some
and perhaps many aspects of the plants controls. If control air is no
longer available, it becomes impossible to position valves properly and
the unit cannot be operated. Failure of the air compressors that
service sootblowers will prevent the operation of those devices, with
the resulting damage to the boiler (see project family #10).
c. Other Information
Replacement is often the most economical choice for fixing a
damaged compressor. Replacement projects can cost up to $2/kw.
______
APPENDIX THREE
Statement of Paul Kern, Recording Secretary, Local Number 105,
International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO
public meeting regarding new source review
Members of the panel, thanks for allowing the Boilermakers Union to
provide a statement at today's discussion of New Source Review. The
Boilermakers are a diverse union representing over 100,000 workers
throughout the United States and Canada in construction, repair,
maintenance, manufacturing, professional emergency medical services,
and related industries. I am recording secretary at one of our large
locals, located in the Greater Cincinnati area.
First, let me be clear today that Boilermakers do not oppose the
Clean Air Act, nor do we oppose its rigorous enforcement. In fact,
construction lodges of our union look forward to doing much of the
actual work for the installation of new technologies and controls at
utility plants and for industrial boilers across this region and the
country. In reference to the NOx control program alone, our
international President Charlie Jones recently wrote:
``The EPA estimates that compliance measures will cost about $1.7
billion a year. A sizable portion of that money will go to the
Boilermakers who do the work necessary to make the additions and
modifications required by the SCR technology.''\16\
---------------------------------------------------------------------------
\16\ Boilermaker Reporter, vol. 38, No. 1 (1999) SCR means
selective catalytic reduction. SCR essentially consists of injecting
ammonia into boiler flue gas and passing it through a catalyst bed
where the NOx and ammonia react to form nitrogen and water vapor.
---------------------------------------------------------------------------
Aside from NOx control, Boilermakers have always led the way on
Clean Air Act issues. For example, Boilermakers were pioneers in
installation of scrubbers and further in fuel-substitution programs at
our cement kiln facilities. In short, Boilermakers have been there to
meet the challenges of the Clean Air Act, to the benefit our members
and all Americans that breathe clean air.
However, Boilermakers cannot support the EPA's recent
interpretation of its authority under the New Source Review program.
NSR, correctly interpreted, forces new sources or those undergoing
major modifications, to install new technology, like the technology
President Jones mentioned. We support NSR in that context.
But, when NSR is applied to the routine maintenance policies and
schedules of existing facilities, very different results occur. In
those cases, facilities are discouraged from undertaking routine
actions for fear of huge penalties or long delays or both. By applying
NSR in that way, we are pretty sure that Boilermakers won't have the
opportunity to work on maintenance projects that we know are extremely
important to energy efficiency. Just hearing about recent events in
California is enough to make the case that facilities need to be as
efficient as possible.
Efficiency is not the only reason to encourage routine maintenance.
Experienced professionals or Boilermakers new to the trade can both
tell you: maintenance is necessary to maintain worker safety. Electric
generating facilities harness tremendous forces: superheater tubes
exposed to flue gases over 2000 degrees; boilers under deteriorating
conditions; and parts located in or around boilers subjected to both
extreme heat and pressure. Any EPA interpretation which creates
incentives to delay maintenance is simply unacceptable to our workers.
As you can see, Boilermakers do not ask for repeal or substantial
revision of the NSR program. We encourage the development and
installation of new technology, and we stand ready to continue to train
and apprentice workers to meet the needs of the Clean Air Act. However,
when the NSR programs goes where it wasn't intended--and discourages
the very maintenance, repair and replacement activities that constitute
the livelihood of Boilermakers--we must strongly object.
Thanks for the opportunity to make a statement.
__________
Statement of Barry L. Johnson, Ph.D., F.C.R., Assistant Surgeon General
(ret.), Adjunct Professor, Department of Environmental and Occupational
Health, Rollins School of Public Health, Emory University, Atlanta, GA,
Representing Physicians for Social Responsibility
Good morning. I am Barry Johnson, Ph.D., representing the
Environmental and Health Program, Physicians for Social Responsibility
(PSR). PSR has had a long-standing concern about hazards in the
environment and the importance of physician education about them. We
welcome the opportunity to brief the subcommittee on matters of
environmental health. Prior to my retirement in 1999 as a commissioned
officer in the Public Health Service, I served as Assistant
Administrator of the Agency for Toxic Substances and Disease Registry
(ATSDR), which was created under the Superfund Law of 1980. I am
currently Adjunct Professor of Public Health, Emory University, Rollins
School of Public Health in Atlanta. I am also editor-in-chief, Journal
of Human and Ecological Risk Assessment.
I have previously testified several times before Congress on
matters of hazardous substances in the environment and their
consequences to the public's health. My testimonies have always been
based on current scientific findings and their implications for human
health. In particular, my testimonies have presented Congress with
specific information about the effects on the public's health of long-
term exposure to contaminants released from hazardous waste sites and
other sources of release. My testimony today will not depart from
previous testimonies. My purpose today is to update you on recent
research findings from several sources. The findings, PSR believes, are
of great import to the public's health and support the need for greater
actions by government, private industry, and non-government
organizations to reduce the pollution load experienced by the American
public.
In previous testimonies to Congress, I summarized findings about
the hazard to human health posed by hazardous waste sites. In
particular, I noted that the body of published epidemiological research
points to an increase in reproductive disorders in children born to
parents who resided near Superfund and similar hazardous waste sites.
The overall pattern of reproductive disorders included birth defects of
the heart, neural tubes, and oral cleft palate, and reduced birthweight
has been reported in several studies. Of note, British investigators,
using data from registers of congenital anomalies in five European
countries, reported in 1998 that residence within 3 km of a landfill
was associated with increased risks of neural tube anomalies, defects
of the heart, and anomalies of arteries and veins. These findings from
European investigators are quite similar to findings from studies of
American Superfund and similar sites and suggest that landfills
containing hazardous waste are a general public health concern. The
gravity of the adverse reproductive outcomes from exposure to hazardous
substances in the environment led PSR to develop its Birth Defects &
Other Reproductive Disorders brochure and distribute it to more than
20,000 medical specialists in obstetrics and family medicine.
More than 60 studies of communities residing near hazardous waste
sites are summarized in my 1999 book Impact of Hazardous Waste on Human
Health. As an example of the impact of specific Superfund sites, both
the Lipari site in New Jersey and the Love Canal site in New York share
a common outcome: during the period of documented, greatest release of
hazardous substances from these sites, the incidence increased of
reduced birthweights of babies born to parents residing nearest the
sites. When the releases were interdicted, birthweights returned to a
normal pattern. This is a noteworthy observation implying that public
health assessment of hazardous waste sites and site remediation are
vital public health actions.
The effects of release of hazardous substances from hazardous waste
sites on cancer rates of communities near the sites are less clear than
for reproductive outcomes. There are some published studies that show
increased rates of cancers of the stomach, gastrointestinal tract, and
urinary bladder, but in my opinion, there is not a current consistent
pattern of association of various cancers with proximity to hazardous
waste sites. As you know, most cancers have a relatively long latency,
20 to 40 years, typically, perhaps contributing to lack of better
understanding about any association between cancer rates and hazardous
waste sites. However, the published work by ATSDR provides a basis for
public health concern. Of the 30 hazardous substances most often
released from Superfund sites, 18 are known human carcinogens or are
reasonably anticipated to be. This knowledge is of great import to
public health because it points us toward community and physician
education programs and remediation priorities for EPA Superfund site
clean-ups and other actions bearing on protecting the public's health.
Since 1999, additional studies have been published in the
scientific literature that associate specific health effects with
residential proximity to hazardous waste sites. For example, British
investigators reported small excess risks of congenital anomalies and
low and very low birthweight in populations living near 9,565 landfill
sites operating in Great Britain between 1982 and 1997. The anomalies
included small, elevated risks for neural tube defects, hypospadies,
and abdominal wall defects. In a different investigation, European
researchers studied 245 cases of chromosomal anomalies and 2,412
controls who lived near 23 hazardous waste sites in Europe. This year,
the investigators reported an increase in chromosomal anomalies in
persons living closest to the sites.
These studies from European investigators add further scientific
weight to previous studies that living near hazardous waste sites is
associated with an increased risk of adverse reproductive outcomes,
including birth defects and reduced birthweight babies. These are
matters of serious public health concern and argue for a strong program
of remediation of Superfund and other hazardous waste sites.
At this point in my testimony, I want to bring some quite recent
studies to the subcommittee's attention. These studies report serious
public health consequences of air pollution. There are common themes
across these studies. First, these studies have included data on the
levels of toxicants in the environment of the populations studied.
Second, these are studies of long-term, chronic exposure of the
populations at risk. Such studies are difficult to conduct because the
exposure levels are generally low, difficult to estimate or measure,
and health outcome data may be hard to obtain. In other words, these
kinds of longitudinal studies that engage both health data and
environmental pollution levels are particularly valuable for public
health purposes and for policies on environmental remediation.
The effect of air pollution on children's health is a particularly
important subject. Any disease or disability in children reduces their
quality of life and brings expensive health care costs. Knowing the
effects of environmental hazards on children's health is important
because they are preventable: reduce the level of pollution. In regard
to outdoor air pollution, one major study has reported serious
consequences to children who resided in areas in California with
measured levels of air pollutants. In 1992, the California Air
Resources Board commenced a large-scale, long-term study of the health
effects of children's chronic exposures in southern California areas of
air pollution. Approximately 5,500 children in 12 communities were
enrolled in the study. The children's health status was assessed
through questionnaires, pulmonary function testing, and monitoring of
school absences. The study's major findings to date include:
correlation between lower lung function and more intense air pollution;
slower lung growth associated with high levels of nitrogen dioxide and
particulate matter (2.5 and 10 micrometers); lower breathing capacity
for girls living in the most polluted communities; and more evident
wheezing in boys exposed to higher levels of nitrogen dioxide and acid
vapor. These findings are obviously of great concern to public health
and raise the obvious question about whether air quality standards for
air pollutants are adequately protective of human health.
Another very recent study, conducted by the American Cancer Society
(ACS) and associated investigators, assessed the association between
long-term exposure to fine particulate air pollution and causes of
death. Using vital status and mortality data collected by the ACS and
by administering a survey questionnaire, risk factor data for
approximately 500,000 adults were linked with air pollution data for
metropolitan areas throughout the U.S. The investigators found fine
particulate and sulfur oxide-related air pollution were associated with
lung cancer, cardiopulmonary, and from all causes of death combined.
Each 10-microgram/m<SUP>3</SUP> increase in fine particulate air
pollution was associated with about a 4 percent, 6 percent, and 8
percent increased risk of all-cause, cardiopulmonary, and lung cancer
mortality.
While the effects of air pollutants on lungs are, and will remain,
significant in terms of the public's health, scientific evidence is
emerging that air pollutants may exert an even greater public health
burden as a contributor to heart disease. Particularly alarming is the
reported association between very small particles in air and their
contribution to sudden heart failure. As examples of research findings,
researchers examined air pollution levels for the years 1980-1989 in
Milan, Italy, for association with deaths on days of elevated
pollution. Among the findings, a significant association was found for
heart-failure deaths (7 percent increase/100-micrograms/m<SUP>3</SUP>
increase in total suspended particulate [TSP]). Similarly, another
investigator analyzed daily mortality from nonexternal causes among
Philadelphia, Pennsylvania, residents from 1973-1980. They found that a
100-micrograms/m<SUP>3</SUP> increase in the 48-hr mean level of TSP
was associated with deaths due to cardiovascular disease.
Other investigators suggest that exposure to fine (i.e., 2.5
micrometer in diameter or less) particulate matter (PM<INF>2.5</INF>)
decreases heart rate variability, possibly contributing to myocardial
infarction. Although further research is needed to clarify the
association between air pollution and fatal heart attacks, there is
already sufficient data, I believe, to move forward with public health
prevention actions, such as public awareness and physician education
campaigns.
Senators, the cited studies reinforce the body of scientific
evidence that associates hazardous substances in the general
environment with adverse health effects. As you know, the core
principle of public health is to prevent disease and disability.
Regarding toxicants in our communities, they should be eliminated or
reduced to levels that don't cause adverse human health effects. EPA
and States have made considerable progress in reducing environmental
health risks, and the public health community supports further risk
reduction, based on the best scientific evidence. Now is not the time
to gamble with unproven administrative procedures that may set back the
progress already made.
Thank you for your attention, and I look forward to any questions
from the subcommittee.
Responses of Barry L. Johnson to Additional Questions from
Senator Smith
Question 1. Would you please provide citation for all data in your
testimony--was this data peer-reviewed (if yes, by whom)?
Response. Attached is my testimony, with references given as
footnotes. All are peer-reviewed studies published in technical
journals, except for the Air Resources Board study, which has not been
published to date. My book (Impact of Hazardous Waste on Human Health)
was peer reviewed by both ATSDR scientists and three persons outside
government (Thomas Burke, Johns Hopkins University, School of Public
Health; Philip Landrigan, Mt. Sinai Medical School; Doris Cellarius,
Sierra Club).
Question 2. Are you familiar with other peer-reviewed studies that
draw similar conclusions--if so, please cite.
Response. I don't know what is meant by ``similar conclusions.''
The references cited in my testimony are those key to my testimony and
the cited authors' conclusions speak for themselves. If by ``similar
conclusions,'' one means has anyone else published a synthesis paper
like my testimony, the answer is, ``no, to the best of my knowledge.''
Question 3. Are you familiar with other published, peer-reviewed
research that demonstrates the primary cause of cancer incidents are
due to the wide variety of environmental factors over a person's
lifetime and not proximity to Superfund sites?
Response. Yes, depending on how one defines ``environmental
factors,'' there are published studies on the association between
tobacco use and lung and mouth cancer, studies on association between
long-term exposure to trihalomethanes in water with cancer, and there
are occupational health studies that associate, e.g., various workplace
toxicants with specific kinds of cancer. Also, the ACS study (reference
No. 11 in my testimony) associates air pollution with excess mortality
from lung cancer.
Question 4. Please provide the specific citation for the American
Cancer Society Study you refer to on page 6 of your written testimony?
Response. See Reference No. 11 in the attached testimony.
Question 5. Do you have any further comment on the testimony of Mr.
Segal?
Response. No.
Question 6. Do you have any further comment on the testimony of Mr.
Schaeffer?
Response. No.
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