STATEMENT
OF
THOMAS L. SANSONETTI
ASSISTANT ATTORNEY GENERAL
ENVIRONMENT AND NATURAL
RESOURCES DIVISION
BEFORE THE
COMMITTEE ON ENVIRONMENT
AND PUBLIC WORKS
AND
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
CONCERNING
NEW SOURCE REVIEW POLICY,
REGULATIONS, AND ENFORCEMENT ACTIVITIES
PRESENTED ON
JULY 16, 2002
INTRODUCTION
Chairmen Jeffords and Leahy, and
Members of the Committees, I am pleased
to be here today to discuss the Department of Justice=s enforcement activities on behalf of the
Environmental Protection Agency=s New Source Review or ANSR@
program. We take the health
impacts of air pollution seriously and view our enforcement activities in this
area as an important part of the effort to clean up the air that Americans
breathe and to protect public health and the environment. Accordingly, we in the Department=s Environment and Natural Resources Division
are continuing to prosecute vigorously a variety of actions in connection with
the NSR program.
In my testimony today, I will give
you some background on the NSR enforcement litigation in general and then
discuss in greater detail our enforcement activities in this area. One of the points that I want to convey to
you is that there is much more to this program than regulation of power plants,
and that we have taken a broad-based enforcement approach encompassing a number
of industries. This approach has
resulted in significant gains for public health and the environment across the
United States. In addition, although I
will not be discussing it in further detail, the Committees should be aware
that the NSR litigation is only one part of the Environment and Natural
Resources Division=s
enforcement docket. We have many other
enforcement actions focusing on other, non-NSR related portions of the Clean
Air Act, such as violations of permits, State
implementation plans, New Source Performance Standards, and National Emission
Standards for Hazardous Air Pollutants.
In addition, we are also
actively prosecuting violators of the Clean Water Act, the Safe Drinking Water
Act, the hazardous waste laws and a variety of other environmental laws. We are committed to vigorous enforcement of
all of the environmental laws as well as violations pertaining specifically to
the NSR program.
HISTORY OF NSR ENFORCEMENT LITIGATION
In 1977, Congress amended the
federal Clean Air Act to add certain provisions which have come to be known as
the New Source Review or ANSR@ provisions.
The NSR provisions actually have two parts -- the Prevention of
Significant Deterioration provisions, which apply to areas in attainment status
for national ambient air quality standards, and the New Source Review
provisions proper, which apply to areas that are in non-attainment status. See 42 U.S.C. ' 7470 et seq. and '7501 et seq. Both sets of
provisions require that both newly-constructed sources of air pollution and
existing sources that undergo Amodification@
obtain an NSR permit and install state-of-the-art pollution control
technology. The Act defines a Amodification@ as Aany physical change in, or change in the
method of operation of, a stationary source which increases the amount of any
air pollutant emitted by such source or results in the emission of any air pollutant
not previously emitted.@ 42 U.S.C. '' 7411(a)(4), 7479(2)(C), 7501(4). If the source is in an attainment area, it
must use the best available pollution control technology, but if it is in a
non-attainment area, it must use the more stringent lowest achievable emissions
reduction technology. 42 U.S.C. '' 7475(a)(4), 7503(a)(2).
In the late 1980's, the Department
of Justice began bringing enforcement actions for NSR violations against
facilities that made Amodifications@ without obtaining a permit or installing
state-of-the-art pollution controls.
Our primary goal in these actions has been, and continues to be, the
protection of public health and the environment by compelling facilities that
are in violation of the law to install state-of-the-art pollution
controls. We also seek the imposition
of appropriate civil penalties for past violations, as an important component
of our efforts to discourage non-compliance and to ensure a level playing field
between those who comply with the law and those who fail to do so.
Over time, working with our
colleagues at EPA, we developed a strategy of targeting industries that had
significant compliance problems with regard to NSR requirements and that were
major sources of air pollution. These
industries included the wood products industry, refineries, and coal-fired utilities. I would like to describe just a few of our
recent successes in these sectors.
Wood Products Industry
The first industry on which we
focused in our NSR enforcement efforts was the wood products industry. Our first actions concerned single
facilities. See U.S. v.
Louisiana-Pacific Corp., 682 F.Supp.1141 (D.Colo.1988). We subsequently filed another action against
Louisiana Pacific, which was resolved in 1993 by a consent decree that required
the company to install pollution controls at its facilities nationwide and to
pay a civil penalty of $11
million. Since that landmark
settlement, we have had a string of successes in obtaining similar settlements
from other major wood products manufacturers, such as Georgia Pacific and
Willamette Industries. In fact, I was
privileged to announce our most recent success in this sector just a few months
ago. In March of this year, we filed a
consent decree with wood products industry giant Boise Cascade Corporation that
will require reductions of up to 95 percent of the harmful emissions from the
company's eight plywood and particle board plants, located in Oregon,
Washington, Louisiana and Idaho. Boise
Cascade will also pay $4.35 million in civil penalties and has agreed to spend
another $2.9 million in supplemental controls to reduce emissions at various
plants. The State of Louisiana, which
joined us in bringing this action, will receive a portion of the civil penalty.
Refineries
We have also been very successful in
reaching settlements for NSR violations with several major refiners. After prevailing at trial on the issue of
liability, we joined with the EPA and the Wisconsin Department of Justice in
January to announce a settlement with Murphy Oil USA, Inc., which will dramatically
cut sulfur dioxide ("SO2") emissions from the company's Superior,
Wisconsin refinery, and will also improve Murphy Oil's programs to monitor and
repair leaks of volatile organic compounds and to prevent oil spills. Murphy
will also pay a $5.5 million civil penalty, the largest ever leveled in
Wisconsin in an environmental enforcement case; the State of Wisconsin will
receive $750,000.
Also, last December, we announced
comprehensive environmental settlements with Conoco Inc., Navajo Refining
Company and Montana Refining Company that are expected to reduce harmful air
emissions from seven U.S. petroleum refineries by more than 10,000 tons per
year. One consent decree required
Conoco to spend an estimated $95‑$110 million to install the best
available technology to control emissions from stacks, wastewater vents,
leaking valves and flares throughout its refineries, while the other required
Navajo and Montana Refining to spend an estimated $16‑$21 million to
undertake similar projects. The states
of Louisiana, Oklahoma, Montana, Colorado and New Mexico joined the settlements
and are sharing in the civil penalties obtained. Attorney General Ashcroft stated that A[t]hese settlements are a victory for the
environment and the public," and that A[t]hey exemplify the U.S. government's commitment to protect our
natural resources, to promote cleaner air and to ensure that companies are
complying with environmental law.@
These are only a few of the many
settlements that we have reached with major refiners in the last eighteen
months and that will ensure cleaner air nationwide. Cumulatively,
these settlements cover 37 refineries and 30.6% of the nation=s domestic
refining capacity, and are expected to reduce air emissions of nitrogen oxides
and sulfur dioxide by more than 150,000 tons per year. These settlements also include provisions to
facilitate the production of low sulfur gasoline and diesel fuel, enhance
flexibility, and expedite permitting necessary to address future needs.
Coal-Fired Utilities
The
Department filed seven enforcement actions in 1999 against the owner and
operators of coal-fired power plants located in Illinois, Indiana, Ohio, West
Virginia, Virginia, Georgia, Alabama, and Florida, and three additional actions
since then for plants located in North Carolina, South Carolina, Alabama, and
New Jersey. So far, we have reached
settlements with the Tampa Electric Power Co., and agreements-in-principle with
Virginia Electric Power Company and Cinergy, under which these companies agreed
to install and operate state-of-the-art pollution controls on significant
portions of their entire coal-fired generating systems.
Our
most recent success in this area came in January, when we joined forces with
the State of New Jersey by filing an action against and reaching a settlement
with PSEG Fossil LLC. Under that
settlement, PSEG will spend over $337 million to install state‑of‑the‑art
pollution controls to eliminate the vast majority of sulfur dioxide and
nitrogen oxide emissions from its Mercer and Hudson coal‑fired power
plants in Jersey City and Hamilton, New Jersey. The combined effect of the pollution controls will reduce the
company's emissions of sulfur dioxide (SO2) by 90 percent and its emissions of
nitrogen oxides (NOx) by more than 80 percent. Overall reductions will be at
least 36,000 tons of SO2 and 18,000 tons of NOx per year. These decreases
represent 32 percent of all the SO2 and 20 percent of all the NOx emitted from
stationary sources in New Jersey, and 19 percent of all the SO2 and 5 percent
of all the NOx from all sources in the state, including cars and trucks. In addition to the pollution reductions
secured by the settlement, PSEG Fossil agreed to pay a civil penalty of $1.4
million and to spend at least $6 million on three pollution reduction projects
that will partially offset the impact of past emissions. As the Attorney General stated, AThis important settlement reflects our
continuing commitment to enforce vigorously the Clean Air Act to protect public
health and the environment.@
CURRENT STATUS OF PENDING NSR ENFORCEMENT
ACTIONS
We
currently have eleven pending enforcement actions in which NSR violations are
the main issue. Eight actions involve
coal-fired power plants, and the remaining three involve other industries.
Of
the eight pending power plant cases, five are currently in active discovery on
liability issues. The first of the five
(U.S. v. Southern Indiana Gas & Electric Co. (ASIGECO@)) is scheduled to go to trial later this
year in October. In the other three
pending power plant cases, the parties are either engaged in settlement
negotiations (U.S. v. Cinergy Corp. in Indiana) or discovery has
been stayed because the district courts are awaiting the Eleventh Circuit=s decision in TVA v. EPA. (U.S. v. Georgia Power Co. and Savannah
Power Co. in Georgia and U.S. v. Alabama Power Co. in Alabama). TVA v. EPA is a challenge by TVA to
EPA=s 1999 administrative order directing TVA to
install pollution controls at coal-fired power plants in Kentucky, Tennessee
and Alabama that have undergone modifications.
Although that case has been fully briefed and was argued in May 2002,
the Eleventh Circuit has not reached a decision and recently referred the case
to mediation until the end of August.
Seven
northeastern States (New York, New Jersey, Connecticut, Vermont, New Hampshire,
Massachusetts, and Rhode Island) and Maryland have joined as plaintiffs in one
of the enforcement actions against coal-fired power plants (U.S. and State
of New York et al. v. American Electric Power Co. et al.) New York, New Jersey and Connecticut also
joined as plaintiffs in U.S. and State of New York et al. v. Ohio Edison Co.
et al. and in U.S. v. Cinergy Corp.
A
number of citizen and environmental groups also have joined as plaintiffs in
four of the enforcement actions against coal-fired power plants. Citizen plaintiffs in U.S. and State of
New York et al. v. American Electric Power Co. et al. include Ohio Citizen
Action, Natural Resources Defense Council, Sierra Club, Clean Air Council, U.
S. Public Interest Research Group, Izaak Walton League of America, National
Wildlife Federation, Citizens Action Coalition of Indiana, Hoosier
Environmental Council, Valley Watch, Inc., Ohio Valley Environmental Coalition,
West Virginia Environmental Council, Indiana Wildlife Federation, and the
League of Ohio Sportsmen. Citizen
plaintiffs in U.S. v. Duke Energy Corp. include the North Carolina
Sierra Club, North Carolina Public Interest Research Group, and Environmental
Defense. Citizen plaintiffs in U.S.
v. Georgia Power Co. include Physicians for Social Responsibility, Campaign
for a Prosperous Georgia, U.S. Public Interest Research Group, and the Alabama
Environmental Council. The Alabama
Environmental Council is also a plaintiff in U.S. v. Alabama Power Co. Finally, Hoosier Environmental Council and
Ohio Citizen Action have joined as plaintiffs in U.S. v. Cinergy.
THE ATTORNEY GENERAL=S NEW SOURCE REVIEW REPORT
In
May 2001 the National Energy Policy called for the Attorney General to Areview existing enforcement actions regarding
new source review to ensure that the enforcement actions are consistent with
the Clean Air Act and its regulations.@ This review was conducted by
the Department of Justice=s Office of Legal Policy, which issued its report in January 2002 (ANew Source Review: an Analysis of the
Consistency of Enforcement Actions with the Clean Air Act and Implementing
Regulations@).
The Office of Legal Policy determined that Athe existing enforcement actions are
supported by a reasonable basis in law and fact,@ and that the Department=s Environment and Natural Resources Division Awill continue, as it has during the pendency
of this review, to prosecute vigorously the EPA=s civil actions to enforce the new source review provisions.@ OLP
New Source Review Report, January 2002, p. vi.
I
should also note that our determination does not mean that EPA cannot revise
NSR regulations in the future. As OLP
said in its report: AThe effect
of the Department=s conclusion is retrospective. It examines
only currently pending enforcement actions to determine their lawfulness, and
expresses no opinion on how the Clean Air Act should be enforced in the
future. Those policy determinations
rest with the EPA.@
CONCLUSION
In
closing, I would like to assure these Committees that the Department of Justice
takes very seriously its obligation to enforce the existing laws and to protect
public health and the environment. As
directed by the Attorney General, we will continue to vigorously prosecute the
NSR enforcement actions and to defend the action brought by TVA against EPA to
the full extent of the law. I would be
happy to answer any questions that you may have about my testimony.