pollution enforcement questioned
The state takes less
action against new sources of smog than others nearby.
U.S. officials will meet today with the DEP chief.
Posted on 09/24/2002
Pennsylvania takes far less
action against new sources of air pollution than nearby
states in the smoggy Northeast, according to federal
In the last five years,
New Jersey cracked down on 13 polluters who installed
new smokestacks or other emission sources without proper
controls. New York targeted 26. (California led the
nation at 57).
In Pennsylvania - which,
like those states, has some of the smoggiest air in
the country - Environmental Protection Agency data show
that state regulators took action against just one.
State officials say the true number is slightly higher.
One case in which the state
chose not to levy a penalty, involving a Boyertown company,
will be aired today when federal officials meet with
David Hess, secretary of the state Department of Environmental
Protection, about Pennsylvania's overall enforcement
The meeting comes as the
Bush administration has proposed to streamline the complex
regulations known as "new source review," a move that
environmental groups contend will result in dirtier
Although those new rules
would not take effect for months, the federal data suggest
that Pennsylvania already does little to enforce existing
According to state officials,
they have taken action against four illegal new pollution
sources during the last five years, not the one that
EPA records show. But one of the four was a case initiated
by the EPA, not the state.
Though it has taken action
against few polluters, it does not appear to be for
lack of opportunity. Pennsylvania has 2,047 "major"
sources of air pollution, according to the EPA, substantially
more than the states that conduct lots of enforcement.
New Jersey has 1,481 sources; New York has 2,009 and
Eric Schaeffer, the former
chief of civil enforcement at the EPA who left in frustration
over the Bush administration's proposed revisions to
new source review, said Pennsylvania was too easy on
"I know Pennsylvania on
new source review, from [my] days at EPA, they were
not the shining example of enforcement," Schaefer said.
"That's an understatement."
Hess strongly disputes such
characterizations. He said Pennsylvania companies may
simply be better at following the law, noting that when
the Clinton administration filed suit against 51 power
plants for alleged air violations, not one was in Pennsylvania.
Whatever the case, the differing
state and federal interpretations of enforcement policy
will be among items on the agenda today at the unusual
meeting between Hess and top officials from the EPA's
The dispute is a mark of
the sometimes uneasy relationship between the EPA, which
oversees enforcement of federal environmental laws,
and the states, which perform most of the day-to-day
enforcement on a delegated basis.
The law in question is complex.
It requires refineries, power plants and other industry
to install the best-available pollution-control equipment
whenever they add a "new source" - that is, whenever
they undergo a modification that results in a significant
increase in pollution, an amount that varies depending
on how bad the air is locally.
In Southeastern Pennsylvania,
as in parts of New York, New Jersey and California,
the amount is 25 tons per year for so-called volatile
organics. That is a class of chemicals that lead to
the formation of ground-level ozone, or smog.
The case that led in part
to today's meeting is that of Cabot Performance Materials,
a Boyertown company that has admitted to several permit
violations. EPA officials say Cabot owes a penalty;
the state DEP contends it does not.
Cabot, according to company
disclosures to the DEP in September 2000, installed
four new devices that emit hexone, a smog-causing chemical,
between 1991 and 1996. Hexone is a byproduct of Cabot's
process for refining tantalum and niobium, two metals
that are key ingredients of cell phones and other gadgets
of the computer age.
The new devices were added
without permits, and hexone emissions from two of the
devices exceeded the 25-ton limit, the company said.
Cabot officials say the failure to obtain permits was
an oversight that has since been corrected.
Cabot, a division of Boston-based
Cabot Corp., further contends it did not need to install
new pollution-control devices for various reasons, chief
among them that a reliable technology did not exist
at the time.
Company officials say they
have since developed a way to reduce pollution by half,
at a cost of $10 million.
According to correspondence
between state and federal officials, obtained through
a Freedom of Information Act request, the state is satisfied
with the company's actions, having calculated that the
company did not gain any economic advantage by going
The EPA, on the other hand,
contends the company owes a penalty and took the case
to the U.S. Justice Department -- a move that generally
means the agency has calculated a penalty in the hundreds
of thousands of dollars or higher.
Tom Voltaggio, the EPA's
deputy regional administrator, declined to reveal the
size of any potential penalty. He acknowledged that
the company has now obtained permits and installed the
air-cleaning device, and has agreed to table the EPA
investigation of the case. But with the state not assessing
any penalty for past failures, he questioned what kind
of example that sets for others in industry.
"The question is: Are there
appropriate deterrents in the program that would prevent
people from not applying for permits for things until
they get caught?" Voltaggio said. "That's why capturing
economic benefits is so important."
Voltaggio said the difference
of opinion between EPA and state officials on the Cabot
case also has led him to examine the enforcement policies
of all the states in the region: Pennsylvania, Delaware,
Maryland, Virginia, West Virginia and the District of
Officials at the state and
the EPA say they will work together to iron out any
different approaches toward enforcing the law. But inter-agency
correspondence shows that for a while, relations were
anything but pleasant, with EPA officials accusing their
state counterparts of concealing information.
Environmental groups say
they aren't surprised by the Cabot case, saying it is
evidence that Pennsylvania needs to crack down harder
on polluters. They note that in January, when attorneys
general from nine Northeastern states, most of them
Democrats, urged the Bush administration not to gut
the new source review program, Pennsylvania's Mike Fisher,
a Republican, was not among them.
"If every state trooper
who pulled over a car followed this regulatory philosophy,
no tickets would ever be issued," said John Hanger,
president of PennFuture, an environmental group.
Hess, the DEP chief, said
such concerns are unfounded.
"I think we've tried to
do a good job in enforcing what everyone agrees is a
confusing NSR requirement," Hess said. "No state is
perfect. But our air program does like to do things