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Pennsylvania 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.

Philadelphia Inquirer
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 data.

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 policy.

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 air.

Although those new rules would not take effect for months, the federal data suggest that Pennsylvania already does little to enforce existing rules.

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 California 1,931.

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 air polluters.

"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 Mid-Atlantic region.

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 without permits.

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 Columbia.

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 right."


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