Bad Air

The former head of EPA’s air quality division retired last year — in part because, under Bush, no “good work” was getting done.

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Thirty years ago, under the Ford administration, Bruce C. Buckheit started his work in the federal government. He first served in the Justice Department and then spent 20 years with the Environmental Protection Agency. In 1996, he was named director of the EPA’s Air Enforcement Division, the division responsible for bringing prosecutions under the Clean Air Act.

Buckheit spent his first four years transforming what was then merely a slap-on-the-wrist division into an aggressive enforcement operation that prosecuted the biggest polluters in the country. But under President Bush, the enforcement role of the EPA shrank by 75 percent.

Last November, the EPA told its enforcement staff to cease investigations on all coal-fired utilities, unless, Buckheit says, there was “reason to believe that the facility had conducted activities that would violate the ‘new rules'” — rules he says were “hatched at the White House” without input from the professional and scientific staff at EPA.

Buckheit retired the next month and now works as an environmental consultant, speaking out around the country against the Bush administration’s environmental policies. This week he took time out from volunteering for the Kerry campaign in Tampa, Florida to speak with What prompted your retirement from the EPA in December?

Bruce Burkheit: I was a regular, I hit 55. Any other reason?

BB: Nobody would want to walk away from the opportunity to complete a project that would save thousands of lives and improve the environment. So, the fact that I was eligible for retirement — the fact that they were offering me a buyout — certainly helped, but I would not have retired if we still were going to be doing good work. Once it became pretty clear that we wouldn’t be doing anything this year it made it pretty easy to say, “Well, I’m out of here.” You worked with the EPA under a number of administrations. How do operations under the Bush administration compare with those under Clinton, the first Bush, and Reagan?

BB: The two biggest changes that I saw — the first was the amount of personal attention and intervention has greatly increased in this administration from anything I saw before. Early on, this president Bush said that his management style was to select good people and let them do their job. That didn’t happened at all. If you look at what [former EPA chief Christine Todd] Whitman tried to accomplish and what Leavitt is trying to accomplish now, they are not being given any opportunity to set policy. It is all being set by the White House. You didn’t see that anywhere near that [level of involvement] in previous administrations.

Under the New Source Review (NSR) “reforms,” the EPA did not get to make any decisions. I would make recommendations as to different places we could take it and our negotiators would say, “Well, we’ll try.” And then they would go over to the White House and have these meetings and come back and say, “We didn’t get anything that was on your list.”

With the Mercury rules I spoke with my colleague in the rulemaking office because we were supposed to review it before it went out. It wasn’t coming over and I asked, “When are we going to see this thing?” and he said, “Don’t look at me; we’re still waiting for numbers from the White House.” So the White House was dictating the answers and the EPA was going over, literally, to take notes and come back and put it into rulemaking form. the second major difference?

Certainly under Bush there may have been a bias, but at least there was a desire to figure out what the facts were and come up with an answer. Here, they know the answers, the administration came in knowing what it wanted to do and didn’t need to have any facts either way to support it on the things that it wanted to do. So, the kind of certitude that you see in Iraq policy, that has been there for four years now on environmental policy. We don’t need to look at what the health implications are; look at what the economic implications are, what the job implications are. We know what we want to do and we are just going to go do it. Can you give an example of issues the public hasn’t heard about?

BB: The public has heard about most of these things, in terms of Mercury, NSR and energy policy. A smaller example: there is a monitoring rule that Congress required in the 1990 amendments where the industries are supposed to have monitoring “sufficient to assure compliance,” that is what the law says. Without looking at any data as to what it might cost and what the impact might be on the environment, the administration just decided, “Nope, we are not going to do that, we are not going to require industry to do monitoring.” They changed the rules so they don’t have to do monitoring. Can you describe the changes you saw in the department during your time as director of the Air Enforcement Division from 1996-2003?

BB: What happened from ’96 to 2001 is that we had taken a program that spent too much time focusing on small matters and paperwork complaints and got it into a fairly sophisticated investigative mode where we would seek out and prosecute environmental violations that mattered, where there were public health implications associated with the violations. That whole approach pretty much has been stopped. The overall numbers are that enforcement is down by 75 percent in the Bush administration. The Environmental Integrity Project has recently published those numbers. When you look behind those numbers, you see that of the 25 percent of the cases they are still doing there is a lot of small, back-to-paperwork violations where they are looking for a $5000 fine for somebody who didn’t turn a report on time or something. They have really turned the program around in a big and scary way. Are the judicial measures in place today adequate to ensure air quality standards enforcement?

BB: Except for this monitoring rule that I just talked about which needs to be put back in place because if you don’t know what is coming out of the stack it is hard to do any enforcement. But the overall Clean Air Act system that is on the books today, if properly enforced, can do a pretty good job. Is it being properly enforced?

BB: No. The states gave up long ago and now the feds have walked away from it. So it’s getting worse?

BB: Yes. Much of the weakness in air quality control come under the New Source Review process. Can you briefly explain what this is and how it has been manipulated by industry?

BB: NSR, New Source Review stands for the fact that in this law [the Clean Air Act], if you are building a new source you have to go through an environmental review to make sure of these things: One, will the emissions from the new source significantly degrade air quality, in which case it might not get built and two does the new source have on the best available control technology? In addition to dealing with brand new sources, Congress wrote the rules so that if you substantially modify an existing facility in a way that increases emissions you are going to be treated as a new source and you have to go through this review and put on controls.

There are two things an EPA investigator has to know. One, did you do a capital project? And if you did one, will that result in an increase in emissions? Until we started looking into this in detail people didn’t know one or the other of those two facts. So what we did is we started looking at both of those things, and in many instances in a lot of industries people were doing these projects without putting on the controls.

We looked at the following industrial sectors: wood products, pulp and paper, refining and coal fired power plants. In each of those industrial sectors we found 70 percent non-compliance. Part of the differences between the old days and what we started doing was looking at industry sectors. We looked at the dirtiest sectors, first to see if they’re in compliance, and then work toward the cleaner sectors. So what the administration has done in response to complaints from industry, they have gone and changed the rules in such a way that in the future the kinds of things that are violations of the law today would no longer be violations. And that undercuts current enforcement of the law because you go to a judge and the defendant is able to say, “Well, gee your Honor, today that wouldn’t be a violation.” You are less likely to get relief from the judge even if it was a violation then. It has taken the oxygen out of the entire enforcement program. Can you give some specific examples of cases where the coal or other industries are using loopholes that lead to increases in pollution?

BB: Cinergy, the fourth largest polluter in the country, reached an agreement in principle with us in the last days of the Clinton administrtion and the early days of Bush administration, but before that could be finalized they got the very strong message from the White House, and they told us that they had been over to the old executive office building and had been in meetings with people from the White House and asked, “Why should we settle? If the administration doesn’t believe that these things are important violations of the law or thinks that it is a bad law that shouldn’t be enforced then why should we pay billions of dollars for pollution controls and settle this case?” So they stalled and stalled for a year or more waiting to see what would happen with the administration and then finally walked away from the deal [in the summer of 2003]. If Kerry wins the election what will his administration need to do to reverse the negative trend in air quality?

BB: A couple things. If the administration indicates to the industry that its serious about enforcing the law and it is going to revitalize this program, I think you will get settlements pretty quickly, from the big players. ADP, TBA, Southern Company and Cinergy are the four biggest polluters in the country and they emit about 25 percent of all of the SO2 emitted from power plants. I would be hopeful that you would get a real snowball going, and maybe some kind of global deal, some kind of global legislation worked out, but I would be optimistic that within two years of a change of administration this whole thing would be resolved and power plants would be on a path to get clean over the next 5 to 10 years.

If it doesn’t happen that way there are 75 investigations that the agency was in the middle of that the Bush administration told them to box up their stuff and stop working on it. Well, the agency would have to just open those boxes back up and get at it.

If his people send a message, well, there are other industries, like refiners. The companies understand what their liability is. For them it is just a waiting game to hope a good thing happens. And if Kerry gets elected and says, “Handwriting on the wall folks,” I am pretty sure people will start coming in. If Bush wins, what is in store for the EPA in the next four years?

BB: I am told that they have more things to roll back. Like what?

BB: There are emissions standards for diesel trucks that are supposed to kick in in 2007. That’s something people are concerned about, that right after the elections — if Bush wins — that will be rolled back. That was something Carol Browner signed her last month in office, that so far they have left alone. What needs to be done so that industry is given incentives to meet air-quality standards, or at least that it’s held accountable?

BB: Capacity and will. It is not just EPA. The Justice Department is really short on capacity right now. But I think it is more will than anything else. If some EPA administrator calls in the coal industry and says we are serious about this, it is going to be a priority for this administration, I think they can make it happen. Are the EPA and Justice understaffed?

BB: Yes, but Justice is worse. They have 15-20 FTE lawyers for all air issues for the country. How does that compare with previous administrations?

BB: It has been going down or holding flat with the rate of inflation for last 8 or 10 yrs. More importantly, their budget for expert witnesses has really been cut. They need another 40 lawyers just for air, and they are at 15 to 20 for the country. If you think about it we have 20,000 major sources in this country and one lawyer for every three states. You are one of several high-level EPA enforcement officials who have left the department largely in protest at the administration’s efforts to soften anti-pollution rules. Do you consider yourself a whistleblower?

BB: No, because I didn’t start speaking out until after I left the industry. And nothing I have said is a secret. I am just objecting to their publicly announced policies. Do you find allies out there?

BB: It is really a small pool of people who have left who were in a position to have detailed information. There is only a handful. But I am learning that other agencies that are having the same problem.



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