Top EPA Enforcement Officials Leaving Agency

John Peter Suarez, the assistant administrator for the Office of Enforcement and Compliance Assurance at the U.S. Environmental Protection Agency (EPA), submitted his letter of resignation to President George W. Bush on Jan. 5.

Suarez informed the president that his resignation would be effective Jan. 30. The letter conveyed Suarez' appreciation and gratitude to Bush for affording him the opportunity to serve the American people during this administration. Suarez has accepted a position with Wal-Mart Inc. in Bentonville, Arkansas.

During his tenure at EPA, Suarez developed and championed the "Smart Enforcement" initiative, an outcome-driven approach to environmental enforcement aimed at connecting environmental and public health benefits with the results of enforcement cases. Suarez stated, "I believe that the enforcement program is on the right track and headed in the direction that we need to go. EPA has demonstrated that we can use data effectively to identify and target the most significant areas of non-compliance, and then measure our successes in light of the benefits realized."

In his resignation letter, Suarez wrote, "The enforcement and compliance efforts are in good hands at EPA, and… [you] can be proud of the work that is being done to protect the citizens of this great nation and the natural resources upon which we all depend."

Other EPA staffers who have resigned or retired in the past few months disagree with that assessment.

They claim the Bush administration is determined to weaken the Clean Air Act, and one EPA insider decried what he called the administration's "general indifference to the environment, especially when it comes to forcing certain industries to be responsible citizens and obey the Clean Air Act and the Clean Water Act."

In August, EPA announced changes to the New Source Review permitting process (NSR) that allowed as much as 20 percent of the cost of replacing a plant's essential production equipment to be spent while allowing the owner to be exempt from installing any pollution controls. The New Source Review program was designed to curb air pollution from industrial facilities by requiring them to install up-to-date pollution controls whenever they made physical or operational changes that increased air pollution. Many of the nation's older power plants have operated long beyond their expected lifespan, polluting at high levels, because utilities have rebuilt these grandfathered plants over time without having to overhaul their emissions systems. EPA launched enforcement lawsuits against utility and refinery violators during the latter part of the Clinton administration for pollution increases that had resulted in millions of tons of air pollution. Several utilities agreed to spend billions to upgrade emissions systems.

In August, EPA said the changes to the NSR program established an equipment replacement provision as part of the routine maintenance, repair and replacement exclusion of the NSR permitting program. According to the agency, the rule made "the program more effective and responsive to today's environmental, economic and energy challenges." (See "EPA Opens Can of Worms With New Source Review Rule Changes.")

Rich Biondi, retiring associate director of EPA's air enforcement division claimed of the changes, "The rug was pulled out from under us." He said he asked himself what contribution he could continue to make at the agency and admitted, "It was limited." Bruce Buckheit, the director of the air enforcement division and Biondi's supervisor, also announced his retirement. Other top enforcement officials to leave the agency since the Bush adminstration took office include Sylvia Lowrance, the acting assistant administrator for enforcement and Eric Schaeffer, who headed the civil enforcement division.

Environmentalists are hoping the court system takes up where the former enforcement officials left off. On Dec. 24, 2003, the U.S. Court of Appeals granted a coalition of environmental groups' motion to stay implementation of the changes to the New Source Review Program. The court will not lift the stay unless it ultimately decides the administration's rule change is legal.

"The administration's rule change would allow industry to renovate facilities in ways that dramatically increase air pollution without installing up-to-date pollution controls or even notifying nearby residents," said Keri Powell, an attorney at Earthjustice. "The stay will prevent industry from taking advantage of this… loophole while the court challenge is pending." Earthjustice is representing the American Lung Association, Communities for a Better Environment, Environmental Defense, the Natural Resources Defense Council, Sierra Club and U.S. Public Interest Research Group in the case.

To obtain a stay, the environmental groups had to demonstrate that they were likely to prevail in their legal challenge to the rule. In addition, they had to show that their members would suffer irreparable harm if the court allowed the rules to go into effect. The court rarely grants requests to stay regulations pending judicial review.

If the court had not issued a stay, the new rules would have gone into effect on Dec. 26, 2003 in at least 17 states and territories, including California, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New York, Nevada and Pennsylvania. Industrial facilities in those states would have been able to take advantage of the new air pollution loophole immediately.

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