Washington, DC - EPA officials have been quietly circulating a plan to allow industries to evade required reviews of new air pollution sources from plant expansion or modification, according to documents released today by Public Employees for Environmental Responsibility (PEER). The plan, entitled "White Paper Number 3," proposes to relax stationary source rules to foster "avoidance" of Clean Air Act regulations governing industrial construction, expansion and retrofitting by writing permits in such a "flexible" way that no new permit need ever be obtained.
Despite the absence of any public notice, this dramatic shift in air quality regulation is now on the verge of adoption. According to the May 12 cover letter to the latest version of the White Paper from William Hartnett, acting Director of the Information Transfer and Program Integration Division of EPA's Office for Air and Radiation:
"In general, the draft White Paper reflects directional agreement among Headquarters offices on major issues...While not mandatory, we will encourage permitting authorities to use this guidance as resources and needs dictate."
Hartnett solicited final internal comments prior to a June 7 decision date.
The White Paper was leaked to PEER, an employee advocacy group, by concerned EPA staff. "This proposal privatizes the Clean Air Act such that the needs of industry rather than public health considerations drive pollution reduction," stated PEER Executive Director Jeff Ruch. "There are big unanswered questions about how pollution permits with this much flexibility can be enforced or even consistently applied from state to state."
Central to the changes proposed by White Paper Number 3 is something called the "smart permit" that anticipates industry options so that a new permit is not needed when facility conditions change. "In order for this system to work, state regulators would need to be both omniscient and prescient," commented Ruch.
Problems with the White Paper voiced by EPA employees include:
1. Enforceability -- The smart permits would be so flexible that it would be nearly impossible to identify Clean Air Act violations. Several recent reviews of EPA air quality enforcement find fault with the thoroughness and rigor of current enforcement efforts. If EPA's present capabilities cannot keep up, ask critics, how can it handle a far more sophisticated permitting scheme?
2. Lack of Public Review -- Not only has the public been cut out of the formulation of this new guidance but, once effective, smart permits virtually eliminate the right of affected citizens to register their concerns about enlargement of nearby pollution sources. Blurry permit standards also make it difficult to bring citizen suits against polluting companies.
3. Concepts Not Tested -- The White Paper policies are based upon "the insights...from a program of pilot permitting projects." These pilot programs were limited to using "flexibility" concepts in writing permits, but not in enforcing them. There has been no experience implementing these concepts, let alone on a large scale.
4. Weak and Uneven Pollution Protection -- If, as proposed, flexibility concepts are simply handed over to the states to implement as they see fit, states could dramatically lower the bar for pollution protection. States would face little constraint from a federal oversight agency, EPA, that itself is fostering Clean Air Act "avoidance."
"The Clinton-Gore policy on air quality is schizophrenic -- with one hand they tighten standards and with the other they weaken enforcement," Ruch concluded. "Any election year 'win-win' regulatory reform or, in this case, 're-invention,' should be approached with skepticism especially when it has been hatched free from public scrutiny."