EPA Air Wars

Longtime environmental enforcement officials choose sides in a battle over anti-pollution rules.

"One thing a bureaucrat learns," says Bruce Buckheit, "is patience." But in December, his patience ran out. Buckheit, 56, reluctantly took a buyout and left as head of EPA's air enforcement division.

"I had to defend something I didn't believe in," says Buckheit, who had spent the last eight years of his 30-year government career at the EPA. § His former assistant, Richard Biondi, a 32-year EPA employee, also retired in December. The two left unwillingly. At 57, Biondi says, "I felt I was still on the young side. There were things I wanted to accomplish. I was on the fence. If we could have continued to do some of the work we did, we would have stayed, but we couldn't make the contribution we thought we could make."

Buckheit and Biondi join a small band of EPA enforcement officials who have left the agency in the past two years frustrated with what they see as the Bush administration's efforts to soften enforcement of anti-pollution rules. Eric Schaeffer, former head of the Office of Regulatory Enforcement, resigned in February 2002. Schaeffer's former boss, Sylvia Lowrance, who served as acting assistant administrator for enforcement and compliance assurance, resigned six months later.

Schaeffer made public his resignation letter to then-EPA Administrator Christine Todd Whitman. "We seem about to snatch defeat from the jaws of victory," Shaeffer wrote. "[We are] fighting a White House that seems determined to weaken the rules we are trying to enforce."

This January, J.P. Suarez, 40, who had assumed the position Lowrance left, resigned to take a job as general counsel for a division of Wal-Mart stores. Former colleagues say Suarez was deeply frustrated by the direction of EPA, but publicly Suarez has said his decision to leave had nothing to do with administration policies. He declined to be interviewed for this article.

"I think this many senior people leaving is telling," says Lowrance, who was with EPA for 24 years.

Taking On Utilities

Buckheit started his government career in 1974 as a counsel in the National Highway Traffic Safety Administration after receiving a law degree from William and Mary College in Virginia where he also earned a master's in physics. From 1984 to 1996, he served in the Justice Department's environmental enforcement section primarily representing EPA, but also other agencies. He moved to EPA in 1996 to head the air enforcement unit.

Buckheit wanted to create consistent anti-pollution enforcement and to make his unit more proactive. "As an EPA lawyer at Justice, I was puzzled as to why things came through the loop," Buckheit says. "There seemed to be no rhyme or reason" about which cases were developed and which weren't. "There was no systemic targeting of violators," he says. "There might be a case against a grain elevator, then a bakery, then a cabinetmaker. There was no industrywide look."

He decided to restructure EPA's air enforcement system, to "look at specific industries to see if there is a problem, rather than waiting for a coconut to fall on our heads." A natural focus was old coal-fired power plants, which pump about 5 million tons of sulfur dioxide into the air annually-about a quarter of emissions in the nation. They also put out about 2 million tons of nitrogen oxide, according to EPA. "We're talking millions of tons of pollutants and tens of hundreds of premature deaths," Buckheit says.

In the 1960s and 1970s, coal-fired plants were thought to be on their way to extinction, edged out by cleaner nuclear energy. Assuming coal-fired plants weren't going to be around much longer, lawmakers excluded them from the anti-pollution regulations of the 1970 Clean Air Act, unless utilities made major repairs or modifications to the plants.

After the 1979 nuclear accident at the Three Mile Island nuclear reactor in Harrisburg, Pa., the worst in U.S. history, the gloss was off nuclear energy. Coal-fired plants were patched together and their lives extended into the 1980s and 1990s. As they continued in service, entire components were replaced. The question arose whether these changes should be considered routine maintenance or major modifications subject to Clean Air Act requirements.

In 1977, lawmakers had updated the Clean Air Act by adding a new source review rule, which allowed companies to operate older plants exempt from clean-air requirements until they made major modifications or replaced equipment. At that time, the new source rule would come into play requiring companies to install up-to-date anti-pollution equipment.

In 1996, Buckheit's unit began collecting industry information and subpoenaing company records and discovered that many utilities had failed to get new source permits when they undertook capital improvements. Between November 1999 and December 2000, the Justice Department, on EPA's behalf, sued nine power companies for expanding 51 plants without obtaining the required new source permits and installing state-of-the-art pollution controls required under the Clean Air Act. Potential penalties ran into the tens of millions of dollars in addition to the cost of new pollution-prevention equipment.

Two companies settled their cases, agreeing to greatly reduce their emissions over the next decade. Buckheit's work was lauded within EPA and even by Republicans who had taken over at the agency in 2001. "I have a lot of respect for Bruce," says Whitman, who headed EPA from January 2001 until she left in May 2003. "The information he brought to the table was honest and well thought out."

Rule Reversal

But even as Buckheit was beginning to have success in enforcing new source review requirements, the rule came under reconsideration. Shortly after George W. Bush took office, he established a task force, headed by Vice President Dick Cheney, to review U.S. energy policy. In 2001, the task force called on the EPA and the Energy Department to review the program and asked the Justice Department to decide whether the new source lawsuits were legitimate. In 2002, the Justice Department determined the lawsuits were valid. But the White House continued to seek changes.

Last October, the EPA published rule revisions that would have permitted utilities to pursue an unlimited number of projects, each of which can cost up to 20 percent of the price of a new plant-which can run as much as $1 billion-without triggering the new source requirements. Thus, violations under the old rule would not be considered violations under the revision.

When Buckheit was directed to follow the new rule last November, he felt frustrated and stymied. "It was my baby," Buckheit says of the campaign to reduce power plant emissions. "The EPA is a big ship, and I had worked for years to take on our biggest, most important polluters. We had put in a lot of creativity and energy, and then I had to explain to people why we shouldn't do it. I had to explain why the new rules were a good thing, or just stand mute." Buckheit decided to take a buyout under a program then in effect at EPA.

Biondi, former associate director of the air enforcement division, also took the buyout. He had started in 1971 as a civilian employee in the Navy after graduating from Newark College of Engineering in New Jersey with a degree in chemical engineering. His parents had a history of government employment: His father was a letter carrier and his mother worked for what is now the Veterans Affairs Department.

In mid-1971, Biondi went to work with the EPA in North Carolina reviewing state implementation of the Clean Air Act. Less than a year later, he moved to Washington and stayed with EPA for 31 years. "People were very, very mission-oriented. They came to the EPA because they wanted to do something about public health, and they were eager to do their job," Biondi says.

But increasingly under the Bush administration, Biondi felt he wasn't being allowed to do his job and his efforts to pursue violators were being undermined by White House policies, he says.

"We weren't given the latitude we had been, and the Bush administration was interfering more and more with the ability to get the job done. There were indications things were going to be reviewed a lot more carefully, and we needed a lot more justification to bring lawsuits."

In December 2003, a federal appeals court halted implementation of the new source review rule revision until it could hear a lawsuit brought in early 2003 by the attorneys general of nine states. They charged that the rule changes were so sweeping they could not be made without congressional approval. It's likely the court won't rule on the case for a year. The legal battle could continue even longer.

Policy Swings

Whitman says the issues that prompted Buckheit, Biondi, Schaeffer, and to some extent Lowrance, to leave are not as clear-cut as they appear. "New source review is cumbersome and haphazard," she says, "There's a pretty clear recognition on both sides of the aisle that it needed to change. But the devil is in the details."

Whitman says the White House wanted to move the EPA away from levying fines, fees and penalties on industry to a more flexible market-based system for reining in polluters called "cap and trade." Under such a system, the federal government sets a pollution standard for the entire country and those companies that reduce their emissions below the standard can sell their extra pollution allowance to firms that haven't met the standard.

Even as controversy over the new source rule has grown, the Bush administration has enacted other regulations to reduce air pollution. One calls for cleaner diesel engines in trucks and buses; another requires that power sources such as outboard motors and construction machine engines be cleaner; the third directs refineries to reduce the pollution in diesel fuel. In January, the administration proposed an interstate air quality rule to reduce emissions of sulfur dioxide, nitrogen oxides, and mercury and suggested states enforce the rule by regulating power plants using cap and trade programs.

"The Bush administration was not doing away with enforcement, but keeping it in place and also trying to find a better way to spur the creativity of the industry," Whitman says of the new source rule changes. She acknowledges that some EPA career staffers "who were doing it one way for years and years" might have found it difficult to adjust to the policy change.

Biondi and Buckheit disagree that the changes simply reflected a shift in policy. "This is hugely different," Buckheit says. "I started with Nixon and Ford. [Change] was cyclical, but it was 40 to 60, 60 to 40 in the swings from left to right of center. I'm not politically active and I was always trying to be a good bureaucrat. But now it's swinging 95 to 5 off the middle."

Schaeffer, who now works for the nonprofit Environmental Integrity Project, which he started, says that with a Republican House and Senate, there is no one on the Hill to whom EPA employees can appeal when they disagree with administration policies. In the past, "the EPA had the ability to say no to the White House and hold them at an arm's length," says Schaeffer. But after 2000, "those calling the shots on the Hill seemed very hostile to the EPA. We couldn't look to the Hill for any kind of balance."

Schaeffer doesn't want his departure to be viewed as denigrating those who choose to stay. "It's a very personal decision to leave," Schaeffer says. "People there can still do some good things."

Schaeffer wrote his resignation letter the night before he left. "I wanted them to see someone was going to say something. All these things were sitting on my chest, and I had to get it out there. . . . At 6 p.m., I sent it to Whitman's office and hit the send button to my staff." He says he never got a response from Whitman, but everyone else seemed to want to discuss the letter. "The next day the phones started ringing and all hell broke loose." Schaeffer appeared on NBC's "The Today Show," ABC's "This Week," and CNN. "It wasn't altogether enjoyable," he says. "I wasn't ready."

But Schaeffer says he doesn't regret writing and publicizing the letter, even though he realizes his chances of working in government again, at least under a Republican administration, are slim to none. "Sometimes you just need to go with your gut," he says.

Hard to Leave

Although critics say the Bush administration's policies are pushing out many of EPA's best people, Whitman attributes staff changes at the top of the agency to normal ebb and flow. "I don't think [the turnover in senior management] is as telling as people want it to be," she says. She says an unusually high number of employees have been with the agency since its inception in 1970, and are nearing retirement age. Also, she says, some of the departures are part of the natural exodus at the end of a presidential term. Buckheit disagrees: "If you look back at the leadership chain who advocated more robust enforcement-all are gone."

Both Buckheit and Biondi want to continue working on environmental issues. Buckheit is consulting on environmental policy for states and other clients. Biondi is considering a post as an environmental consultant. But that doesn't mean it was easy to walk away from federal environmental jobs that were all-consuming for decades.

"The EPA is a pretty young agency and the senior executives [now] at or near retirement saw the first Clean Air Act, the first Superfund. They nurtured [them]," says Lowrance. "It's very, very hard, for senior executives in particular, to reach the decision to leave a place where they feel they are saving lives and making a real difference to people. It's very important work, and people are passionate about it."

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