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C-Katie McGinty: January-July 1993 [3]
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C-Katie McGinty: January-July 1993 [3]
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Kathleen McGinty's Files
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FOIA Number: 2012-0769-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin: Council on Environmental Quality
Series/Staff Member:
Kathleen (Katie) McGinty
Subseries:
Correspondence
OA/ID Number:
2255
FolderID:
Folder Title:
C - Katie McGinty: January-July 1993 [3]
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61
5
2
3
THE WHITE HOUSE
WASHINGTON
June 9, 1993
The Honorable Joseph C. Ciraulo
Mayor
City of Arcadia
240 West Huntington Drive
P.O. Box 60
Arcadia, CA 91066
Dear Mayor Ciraulo:
Thank you for contacting me regarding your concerns about
liability of toxic waste cleanup under Superfund.
As you know, I share President Clinton's and Vice President
Gore's commitment to the preservation of our environment. In his
first State of the Union address, the President reaffirmed his
goal to increase the efficiency of toxic waste cleanup, as well
as to decrease the need for numerous liability lawsuits facing
Superfund sites.
I understand your concerns about the burdensome nature of
these potentially long and costly lawsuits. EPA Administrator
Carol Browner is currently reviewing the 1992 EPA guidance
document that was rejected by the Bush Administration. Be
assured that we will give every consideration to your concerns as
we work toward improving the Superfund program.
Again, thank you for sharing your thoughts with me.
Sincerely,
Kathleen Kathleen Director, A. White McGinty a. House McDitz
Environmental Policy
KAM/avl
COMMUNITY OF HOMES
DENNIS A. LOJESKI
City of Arcadia
MAYOR PROTEMPORE
240 West Huntington Drive
GEORGE FASCHING
CITY OF
ARCADIA
P.O. Box 60
ROBERT C. HARBICHT
1903
Arcadia, California 91066-0060
INCORPORATE
BOB MARGETT
(818) 574-5400
COUNCILMEMBERS
DONALD R. DUCKWORTH
JOSEPH C. CIRAULO
JUNE D. ALFORD
CITY MANAGER
MAYOR May 28, 1993
CITY CLERK
Ms. Katie McGintry
Environmental Advisor to the President
Old Executive Office Building
SENT VIA FACSIMILE
Room 360
Washington, D.C. 20500
Dear Ms. McGintry,
In his first State of the Union address, President Clinton recognized the importance of the
nation's toxic waste cleanup effort and pledged to get the lawyers out of the Superfund
process. We are writing to urge the Administration to take one crucial step that could help
accomplish that worthy goal. Please release an Environmental Protection Agency (EPA)
guidance that will relieve hundreds of local governments, thousands of small businesses, and
countless citizens of the crushing burden of private party lawsuits designed to shift billions
of dollars of cleanup costs from polluting industries to the general taxpayer.
Across the country, entities that polluted Superfund sites are seeking to spread their cleanup
costs to cities and counties, small businesses such as pizza stands and flower shops, little
league teams, the Girl Scouts and even individual citizens. The theory of these cases is that
sending ordinary household garbage and sewage sludge to a Superfund site is enough to
trigger staggering liability under the law, even though industrial hazardous waste and not
benign household wastes is the reason expensive cleanups are necessary. At a time when
scores of local governments and small businesses are struggling to avert fiscal collapse,
provide vital services and remain competitive, this catastrophic liability poses an unforeseen
and unjustified threat to their survival.
Several months before the 1992 election, EPA career staff prepared an excellent guidance
document which was designed to spur reasonable settlements of such cases. This guidance
was killed by the Bush White House after a lobbying blitz by polluting industries. The
Clinton Administration now has an opportunity to correct this misguided decision.
Please act today to help America's counties, cities, towns, small businesses and citizens.
Sincerely, JOSEPH C. CIRAULO
Mayor
JCC:ADM:klm
cc:
American Communities for Cleanup Equity
THE WHITE HOUSE
WASHINGTON
June 10, 1993
Ms. Maureen Cimoch
13 Beacon Road
Webster, MA 01570
Dear Ms. Cimoch:
Thank you for contacting me regarding your concerns about
the proposed Douglas Massachusetts landfill, and I apologize for
the delay in my response.
As you know, I share President Clinton's and Vice President
Gore's commitment to the preservation of the global environment
in a way that leads to strong and sustainable economic growth.
Be assured that we will continue our efforts to protect our
natural resources. You may be aware that the President announced
in his Earth Day speech in April several initiatives in the
environmental arena including pollution prevention and recycling,
thereby reaffirming this Administration's intention to make
environmental issues a top priority.
I have forwarded your information to US EPA Region I
Administrator for review, and I am sure that your concerns will
be given every consideration. I certainly appreciate learning of
your efforts to promote public awareness of the environmental
challenges now facing your community.
Again, I appreciate hearing from you.
Sincerely,
Kathleen A. McGinty M.Butz
Director, White House Office on
Environmental Policy
KAM/avl
FEB 24. 93 20: 58EST
FROM: IBM MAIL EXCHANGE
MSG#: IN09896
PAGE 02 OF 02
Wednesday February 24th, 1993
Dear Tres,
Thanks for taking the time to speak with me again on
Tuesday, February 23rd, concerning the Douglas Massachusetts landfill
project.
I thought it might interest you to know that our State
Representative, Richard Moore, is strongly opposed to this project,
as are State Senator Louis Bertonazzi, U.S. Congressman Richard Neal,
and U.S. Senator Ted Kennedy.
Representative Richard Moore was one of the first officials
to endorse Bill Clinton, in his bid for the Democratic Presidential
nomination. He has met with President Clinton on several occasions,
and has escorted the First Lady on recent visits to the
Boston area.
This location has previously been rejected as a landfill site
because of its proximity to lakes, reserviors, water supplies,
and the discovery of fault lines, and endangered species. And now,
because of the influence of special interests, and their lobbying
efforts, the Department of Environmental Protection is not
addressing our concerns.
I am not blind to the fact that money talks, but there comes
a time in our lives when we must fight against what is wrong. This
Douglas landfill project is wrong. We are 750,000 people strong in
opposition to this project. Shouldn't the concerns of this many people
be answered?
Please make a phone call to our Governor, William Weld.
617-727-3600 or 617-727-6250 Ask to speak to him directly.
Tell him that people have contacted you with serious concerns,
and you would like to know more. Thank You.
Maureen Cimoch
13 Beacon Road
Webster, MA 01570
Phone 508-949-0711
THE WHITE HOUSE
WASHINGTON
June 1, 1993
Mr. Red Cavaney
American Forest & Paper Association
1250 Connecticut Avenue, N.W.
Second Floor
Washington, D.C. 20036
Dear Mr. Cavaney:
Thank you for contacting me regarding your thoughts on the
Executive Order on Recycled Goods. It was good to hear from you.
I share President Clinton's and Vice President Gore's
commitment to preserving our environment in a way that leads to
strong and sustainable economic growth. Recycling is one of our
top priorities. As you know, through the hard work and
initiative of many community and industry leaders, recycling has
become almost routine to many people. However, to really make
recycling a success, further outreach is needed to encourage both
the supply and demand for recycled products. To that end,
President Clinton announced in his Earth Day speech his intention
to sign an Executive Order on recycled goods. This Executive
Order will strengthen the previous Federal Agency Recycling Order
of October 1991 by requiring a revision of procurement guidelines
for recycled products, establishing new content standards for
recycled printing and writing paper, and encouraging federal
agencies to set procurement goals for recycled products.
I appreciate hearing your ideas on postconsumer content in
recycled printing and writing paper. Please keep me apprised of
your thoughts and suggestions on this very important issue.
Again, thank you for sharing your concerns with me.
Sincerely,
Rate Miaming
Kathleen A. McGinty
Director, White House Office on
Environmental Policy
AGJ/avl
AMERICAN
FOREST &
PAPER
ASSOCIATION
20 May 1993
Ms. Katie McGinty
Office on Environmental Policy
Room 360
The White House
Washington, D.C.
Dear Ms. McGinty:
I am writing to request a meeting with you, personally, and a delegation of our
industry's chief executive officers from U.S. printing-writing paper companies to discuss our
capabilities and strong commitment to increased recycling and to ensure that you are fully
aware of the consequences of various courses of action the Administration is considering in
the development of new EPA procurement guidelines for printing-writing papers as part of the
President's proposed Recycled Good Executive Order.
At such a meeting, we are prepared to provide you with data and company-specific
situations to underscore the dynamics involved in increasing the use of recovered paper in the
production of printing-writing paper grades. Enclosed is a brief issue paper outlining this
matter.
Ken Connolly has been extremely helpful in working with our industry on this issue.
Of particular importance was a wide-ranging meeting that included Cathy Zoi and
representatives from the other involved offices in the government. It was at that meeting that
the submission of additional data/information was suggested, information we had hoped to
pass along in person to your staff last Monday.
Concern over this issue has become elevated this past week, however, as a result of
cancellation of a meeting on the matter between ourselves, environmental groups and your
staff; and rumors that there is still no understanding or appreciation for the fact that the large
machines cannot utilize 50 percent recovered fiber.
1250 Connecticut Avenue, N.W. Second Floor, Washington, D.C. 20036
Phone: 202-463-2700 Fax: 202-463-2785
With hundreds of millions of new investment dollars at stake, not to mention billions
in existing facilities, the Printing-Writing Division leadership feels it is vital that they have an
opportunity to be heard directly, hopefully before any final decision is reached. The paper
industry wants the President to be successful in his recycling initiative, and feels it can help
you understand how best to get maximum recycled content growth in the U.S. printing-writing
paper sector. The U.S. paper industry's record over decades, particularly the last ten years,
demonstrates that no industry has a greater record and commitment to future recycling.
I will follow up with Ken to see when such a meeting might be arranged. Thank you.
Sincerely,
Red Cavaney
Enclosure
cc:
Ken Connolly
Mike Draper
Virgil Horton
Mark Rey
2
MCGINTY.520
THE WHITE HOUSE
WASHINGTON
June 4, 1993
Mr. Paul Cook
President
Laurel Green Seedlings Company
3 South Main Street
Stockton, NJ 08559
Dear Mr. Cook:
Thank you for your letter. It was good to hear from you.
I appreciate learning of your efforts in promoting tree
planting. I understand that you are also requesting an
endorsement from Vice President Gore and the White House Office
on Environmental Policy for this project.
While I know that the Vice President is honored by your
request, I regret to inform you that the White House has a policy
which discourages the use of the names or likenesses of the
President, the Vice President, or their staffs in private,
commercial or charitable activity of the sort in question. The
essential reason for this policy is to protect the Offices of the
President and Vice President and to ensure that the holders of
those offices are not involved in activities that might even
indirectly create the appearance of a conflict of interest. I
regret, therefore, that an endorsement is not possible, but I
wish you great success in your important efforts.
Thank you for thinking of the Vice President and the White
House Office on Environmental Policy.
Sincerely,
Ratee
Kathleen
A.
McGinty
Director, White Hose Office on
Environmental Policy
KAM/avl
Laurel Green Seedlings Co.
3 South Main Street
Stockton, NJ 08559
May 13, 1993
609-397-5946
The Honorable Kate McGinty, Director
White House Office on Environmental Policy
286 Old Executive Office Building
Washington DC 20501
Dear Ms. McGinty:
By way of introduction, I am Liz Cook's brother, and a friend of
your brother, John. First, please accept my congratulations on
your appointment as Director of this vitally important office; I
wish you all possible success with your agenda.
I am writing to inform you of our Environnmental Awareness Tree
Seedling Program and our plans for Arbor Day, 1994.
The Seedling Program forges partnerships between business and
education in which companies supply evergreen tree seedlings and
related enivonmental educational material to schools. After
appropriate classroom work, each student is given a seedling to
plant, and educational material to take home. In the two years
since the program began, more than 100,000 American families have
received trees and educational information.
So far, business partners have included companies in the real
estate, natural gas, and financial industries; our largest
participant has been GMAC Mortgage Corporation.
We are now developing a partnership with major league baseball,
in which teams will give attendees at games on or around Arbor
Day, 1994 a seedling to take home and plant, along with educa-
tional literature. The Philadelphia Phillies have already signed
up, and two other teams have agreed verbally.
Most exciting is our proposal to Major League headquarters (with
the help of the Phillies) to involve all teams, and to make Arbor
Day '94 a "Trees Across America" day. We also are seeking other
business partnerships. Our goal is to see one million trees
planted on next Arbor Day - the largest tree planting event in
the history of the country!
The Honorable Kate McGinty
- 2 -
An endorsement from your office and Vice President Gore would
help ensure the success of this vitally important venture. I
have included some material for you and your staff to review, and
would like the opportunity to discuss this further.
I look forward to hearing from you.
Sincerely yours,
Paul Cook
Paul Cook
President
THE WHITE HOUSE
WASHINGTON
June 1, 1993
To the Conferees of the
California Forestry Conference:
I would like to commend you for organizing and participating
in your own Forest Conference on June 2, 1993.
It continues to be the President's sincere hope that the
dialogue which was initiated at the Portland Conference two
months ago be nurtured and expanded by local and regional
efforts. I applaud your efforts to build on a process that
brings affected parties and individuals together in a cooperative
forum to address the difficult social and economic aspects of
forest resource issues.
Through this conference you are demonstrating a real
commitment to using a collaborative rather than adversarial
process for dealing with complex issues which have burdened the
region for many years. You are taking the President up on his
request that you "stay in the conference room and not in the
courtroom." In doing so you have created an opportunity to make
a real and valuable contribution to the well-being of your
communities both now and in the future.
I know that the President and the Vice President join me in
wishing you all the best for a successful conference.
Sincerely,
Director, Office on
Environmental Policy
KAM/avl
May 11, 1993
The Honorable John Chafee
United States Senate
Washington, D.C. 20510
Dear Senator Chafee:
On behalf President Clinton and Vice
President Gore, I would like to express my
deep gratitude for your assistance in
passing the EPA Cabinet level bill. Your
help was absolutely essential, and we are
most appreciative of your efforts.
I look forward to working with you as
we move forward on a wide range of
environmental issues. Please call on me
whenever I can be of assistance.
Again, thank you for your help in
this regard.
Sincerely,
Kathleen A. McGinty
Director, Office on
Environmental Policy
THE WHITE HOUSE
WASHINGTON
May 12, 1993
Dr. Jill Conley
National Research Council
Office of International Affairs
2101 Constitution Avenue
Washington, D.C. 20418
Dear Jill:
Thank you for the note and kind words
of support. It was good to hear from you.
I appreciated the opportunity to meet
with you and to learn about your work in
protecting our environment.
Again, thank you for sharing your
thoughts with me. Let me know of your
future initiatives.
Sincerely,
Kathleen A. McGinty
Director, Office on
Environmental Policy
KAM/avl
NATIONAL RESEARCH COUNCIL
OFFICE OF INTERNATIONAL AFFAIRS
BOARD ON SCIENCE AND TECHNOLOGY FOR INTERNATIONAL DEVELOPMENT
2101 CONSTITUTION AVENUE
TELEX: 353001 BOSTID WSH
WASHINGTON, D.C. 20418 USA
Cable Address: NARECO
TELEPHONE: 202/334-
Fax No 202/334-2660
March 5, 1993
Ms. Katie McGinty
Special Assistant to the President
for the Environment
Office of the Vice President
Old Executive Office Building
Washington, DC 20501
Dear Katie:
Congratulations on your new position! I was really pleased to
hear of your appointment. You will certainly have your work cut
out for you, but you'll be great!
As was the case in the days immediately following our misspent
youth (AAAS liver conferences), I am still at the NAS and
traveling frequently. The work is varied and stimulating, and
I'm still in the state of Perpetual Learning Curve (south of
Pennsylvania).
I wanted to wish you the best of luck in your new job (and
office), and if I can be of any help (however unlikely) here at
the Academy, please let me know. My phone number is 334-1785,
fax is 334-2660.
Again, congrats and good luck!
Sincerely,
Zu Jill Conley, Ph.D.
Senior Program Officer
The Board on Science and Technology for International Development (BOSTID) conducts programs with and for developing countries on
behalf of the National Research Council, through its Office of International Affairs, which serves the international interests of
the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine.
THE WHITE HOUSE
WASHINGTON
May 28, 1993
Mr. Michael Cox
1500 Theresa Lane
Madisonville, KY 42431
Dear Mr. Cox:
Thank you for contacting me regarding your thoughts about
the appointment of Mr. Bruce Boyens to Director, Office of
Surface Mining in the Department of the Interior.
As you know, I share President Clinton's and Vice President
Gore's commitment to the preservation of our environment. I
appreciate learning of your support of Mr. Boyens for this
position. I have notified Interior Secretary Babbitt of your
concerns.
Again, thank you for sharing your thoughts with me.
Sincerely
fath len Kathleen A. McGinty
Director, White House Office on
Environmental Policy
KAM/avl
MICHAEL COX
1500 THERESA LN
WESTERN
®
MADISONVILLE KY 42431
UNION
MAILGRAM
TM
UNITED STATES
POSTAL SERVICE
010358002579 05/19/93
WHSA
KATIE MCGINTY
RM 360 OLD EXECUTIVE OFFICE BLDG
WASHINGTON DC 20501
I SUPPORT BRUCE BOYANS FOR DIRECTOR OF THE OFFICE OF SURFACE MINING.
THE LAW HAS DETERIORATED DRASTICALLY DURING RECENT ADMINISTRATIONS.
I BELIEVE MR BOYANS CAN GET OSM BACK ON ITS FEET. LET'S SAVE WHAT'S
LEFT OF AMERICA.
MICHAEL COX
14959
00:32 EST
MGMCOMP
To reply by Mailgram Message, see reverse side for Western Union's toll-free numbers.
THE WHITE HOUSE
WASHINGTON
May 24, 1993
Ms. Kristin L. Coleman
3401 E. River Road
Tucson, AZ 85718
Dear Friends:
Thank you for contacting me regarding your thoughts about
the Animal Damage Control Act. I apologize for the delay in my
response.
We are in the process of reviewing our policy with the
Department of Agriculture and the Department of the Interior on
this very important matter. I agree that further study of the
options involved is necessary for an informed and balanced
decision to be made. Be assured that we will give every
consideration to your concerns as we look at this issue.
Again, thank you for letting me hear from you.
Sincerely,
Katel Kathleen A. McGinty MEDicary the
Director, White House Office on
Environmental Policy
KAM/avl
March 17, 1993
Kathleen McGinty
White House Office on Environmental Policy
Old Executive Office Bldg., Room 358
Washington, D. C. 20501
Dear Kathleen McGinty:
We hope you will look carefully at putting an end to the Animal Damage Control
Program.
At a time when there is an attempt to reintroduce endangered species and to
preserve endangered environments (not to mention the efforts to curb all
unnecessary federal spending), this program spends over 45 million taxpayer
dollars to kill wildlife on public lands and to develop poisons and control
techniques for wild animals--all as a subsidy to the livestock industry.
In 1992 over one hundred thousand predatory mammals and more than one and one-
half million birds were reported killed by the ADC. Its killing methods--
poison baits, traps, snares, denning and aerial gunning--are indiscriminate and
inhumane.
We demand that this outdated tax-supported federal war on wildlife come to an
end, and that the government begin to protect our natural heritage.
Sincerely,
Kristin L. Coleman
3401 E. River Road
Tucson, Arizona 85718
Steven
Steven L. Coleman D.D.S.
3491 E. River Road
Tucson, Arizona 85718
Janice Janice C. Luepke Luepke
3401 E. River Road
Tucson, Arizona 85718
Norma norma T. Luepke Luephe
Klondyke Rural Station
Willcox, Arizona 85643
John John Klondyke C. Luepké Rural Station
Willcox, Arizona 85643
THE WHITE HOUSE
WASHINGTON
May 24, 1993
Dr. Ellen M. Clark
360 Panoramic Way
Berkeley, CA 94704
Dear Dr. Clark:
Thank you for contacting me regarding your thoughts about
the Animal Damage Control Act. I apologize for the delay in my
response.
We are in the process of reviewing our policy with the
Department of Agriculture and the Department of the Interior on
this very important matter. I agree that further study of the
options involved is necessary for an informed and balanced
decision to be made. Be assured that we will give every
consideration to your concerns as we look at this issue.
Again, thank you for letting me hear from you.
athlen Kathleen Sincerely, A. McGinty a. McGioty to
Director, White House Office on
Environmental Policy
KAM/avl
November 30. 1992
Kathleen McGinty
Clinton-Gore Transitional Team
P.O. Box 615
Little Rock, Arkansas 72203
Dear Ms. McGinty:
It has come to my attention that the Alaska Division of Wildlife Conservation has approved a plan to
slaughter wolves in parts of the Alaska wilderness in an attempt to manipulate the population levels of moose
and caribou (see enclosed article from the New York Times). As a Ph.D. biologist, I follow both the scientific
and political controversies regarding management of wildlife populations in the U.S.
It is apparent from the Times article that the opinion of the scientific community has not been
considered in the decision to decimate Alaska wolf populations. In fact, as far as I can tell, the Alaska Board
of Game is entertaining some rather weird concepts altogether in their approach to wildlife "management". I
therefore conclude that the Alaska state government is dominated by special-interest groups with a vested interest
in business from a hunting lobby. I surmise that a particular subset of the hunting community is prepared to
pay a sizeable fee for the "privilege" of shooting a few wolves.
I feel strongly about this issue because the decision to slaughter wolves represents more than bad science
and bad management. Wolves symbolize the Alaskan wilderness. We here in California struggle to preserve
tracts of wilderness in which most predators have been virtually eliminated. The damage we have already
wrought on our environment reduces the quality of life for us all (and is wreaking havoc with our economy, too).
Alaskans have stewardship over an irreplaceable treasure, and it is truly painful to watch a retrogressive element
of the Alaska state government attempt to abuse the natural heritage of all Americans.
1 am writing to you because I understand that you are primarily responsible for initiating the
implementation of Al Gore's environmental agenda. Preventing the reinstatement of aerial wolf hunts symbolizes
our struggle to halt the destruction of our remaining wilderness. Unlike issues such as oil resource development,
timber harvests, or the moratorium on wetlands development, there isn't even a viable economic argument in
favor of this plan; Alaskans will not lose jobs if the wolves are left in peace. I therefore believe that the new
administration would be sending a positive and generally well-received message if the killing of wolves were
vigorously opposed by Mr. Gore, John Turner, William K. Reilly, and/or whoever is appointed as the new
Secretary of the Interior.
Sincerely yours,
Eh Chr
Ellen M. Clark, Ph.D.
360 Panoramic Way
Berkeley, CA 94704
P.S. And I'm not even looking for a job.
THE WHITE HOUSE
WASHINGTON
May 24, 1993
Ms. Kathleen Chaplin
1875 Ottinger Road
Roanoke, TX 76262
Dear Ms. Chaplin:
Thank you for contacting me regarding your thoughts about
the Animal Damage Control Act. I apologize for the delay in my
response.
We are in the process of reviewing our policy with the
Department of Agriculture and the Department of the Interior on
this very important matter. I agree that further study of the
options involved is necessary for an informed and balanced
decision to be made. Be assured that we will give every
consideration to your concerns as we look at this issue.
Again, thank you for letting me hear from you.
Sincerely,
Kathleen Kathleen Director, A. White McGinty a. House Office on the
Environmental Policy
KAM/avl
Ms. Kathleen Chaplin
1875 Ottinger Road
Roanoke, Texas 76262-9136
March 29, 1993
Kathleen McGinty
White House Office on Environmental Policy
Old Executive Office Building
Room 358
Washington, DC 20501
Dear Ms. McGinty;
I have enclosed a copy of a letter I am forwarding to President
Clinton, as I thought it would be of interest to you also.
I firmly believe that our government subsidies for special
interest groups must be stopped before we can begin to properly
address the federal debt. American's pay their tax dollars
in the good faith that the government will use that money to
directly support GOVERNMENT functions and services. Those
services should be in the interest of the taxpayers, not the
special interest of the oil & gas industry, the cattle industry,
the tobacco companies, etc.
I would appreciate hearing from you on this issue. I fully
realize how powerful many of these special interest lobbies
are, but I have confidence that the Congress, the Senate and
President Clinton can take a more realistic stand against this
discriminating practice of American tax dollars being used to
finance special interest groups.
I look forward to hearing from you and certainly appreciate
any information you might be able to provide on this issue.
Kind regards,
Kathleen Chapsin Chaplin
THE WHITE HOUSE
WASHINGTON
May 24, 1993
Mr. Pete Christensen
16636 North 58th Street
#2021-I
Scottsdale, AZ 85254
Dear Mr. Christensen:
Thank you for contacting me regarding your thoughts about
the Animal Damage Control Act. I apologize for the delay in my
response.
We are in the process of reviewing our policy with the
Department of Agriculture and the Department of the Interior on
this very important matter. I agree that further study of the
options involved is necessary for an informed and balanced
decision to be made. Be assured that we will give every
consideration to your concerns as we look at this issue.
Again, thank you for letting me hear from you.
Sincerely,
Kathleen Kathleen A. McGinty a. to
Director, White House Office on
Environmental Policy
KAM/avl
Representative,
In a time when spending cuts are being finally
talked about seriously, I'm taking the time to write you to
request you reduce or completely end the funding of the
Animal Damage Control program.
ADC isn't cost effective or sound biologicly.
In 1992 over 45 million dollars were spent to kill preditors
like the mountain lion that will no doubt eventually be put
on the endangered species list SO we c_n spend millions more
protecting it.
Ranchers need to be responsible for their own
business. Taxpayers shouldn't be expected to provide a no risk
business environment for them. I feel confident ranchers won't
80 out of business if forced to fend for themselves, they' 11
simply become financially responsible.
Please let me know if you plan to do anything
about this waste of taxpayer dollars, and if not, why?
Thank you
Pete Christensen
16636 N. 58th. St.
#2021-I
Scottsdale, AZ.
85254
THE WHITE HOUSE
WASHINGTON
May 24, 1993
Mr. William L. Conley
2140 N.W. 13th Street
Corvallis, OR 97330
Dear Mr. Conley:
On behalf of President Clinton and Vice President Gore, I
would like to thank you for contacting me with your concerns
about the Forest Management Plan.
The President and I believe that the Forest Conference held
in Portland on April 2 was a significant step toward the
resolution of the problems facing the the Pacific Northwest. At
the conclusion of the conference, President Clinton directed his
Cabinet to develop a Forest Management Plan within 60 days.
As you may know, three working groups have been established
to work on developing this plan. The first group, working on
ecosystem management assessment, is exploring management
alternatives that attain the greatest economic and social
contribution from the forests of the region and meet the
requirements of applicable laws and regulations. Working Group
II, focusing on labor and community assistance, will develop an
economic plan to address not just temporary efforts but long-term
economic development and diversification. The last working group
will work to improve the relationships among federal and state
agencies in the region and to eliminate impediments that block
coordinated action.
I certainly appreciate learning of your continued interest
in this arena as we work toward the resolution of this very
important matter. Again, thank you for sharing your views with
me.
Sincerely,
Kathleen
A.
McGinty
Director, White House Office on
Environmental Policy
KAM/avl
William L. Conley
2140 NW 13th St.
Corvallis, OR 97330
Dear Ms. McGinty
One of the greatest problems that you have inherited from
the previous Administrations is the U.S. Forest Service's
abuse and mismanagement of our National Forests, which results
in overcutting, excessive clearcutting, destruction of old-
growth forests, the devastation of fish habitat, and the
pollution of watersheds. It's outrageous that American citizen's
tax dollars are being used to subsidize the destruction of our
natural resources
I urgently request that you take immediate steps to bring
Forest Service practices into compliance with the National
Forest Management Act of 1976, by restricting logging to
environmentally suitable areas, by eliminating timber sales
that lose money, and by managing our National Forests to
preserve all their values, including recreation, clean water,
wildlife habitat, scenic beauty, biological diversity,
wilderness, and scientific values.
Sincerely,
THE WHITE HOUSE
WASHINGTON
May 24, 1993
Ms. Melissa Carlson-Price
Skamania County Commissioner
Skamania County Courthouse
P.O. Box 790
Stevenson, WA 98648
Dear Ms. Carlson-Price:
On behalf of President Clinton and Vice President Gore, I
would like to thank you for contacting me with your concerns
about the Forest Management Plan.
The President and I believe that the Forest Conference held
in Portland on April 2 was a significant step toward the
resolution of the problems facing the the Pacific Northwest. At
the conclusion of the conference, President Clinton directed his
Cabinet to develop a Forest Management Plan within 60 days.
As you may know, three working groups have been established
to work on developing this plan. The first group, working on
ecosystem management assessment, is exploring management
alternatives that attain the greatest economic and social
contribution from the forests of the region and meet the
requirements of applicable laws and regulations. Working Group
II, focusing on labor and community assistance, will develop an
economic plan to address not just temporary efforts but long-term
economic development and diversification. The last working group
will work to improve the relationships among federal and state
agencies in the region and to eliminate impediments that block
coordinated action.
I certainly appreciate learning of your continued interest
in this arena as we work toward the resolution of this very
important matter. Again, thank you for sharing your views with
me.
Sincerely,
Jahlen Director, Environmental White McGinty Policy House Office on
KAM/avl
EXAMANTA
COUNTY
SKAMANIA COUNTY
BOARD OF COMMISSIONERS
MELISSA CARLSON-PRICE
District 1
Skamania County Courthouse
DEAN EVANS
Post Office Box 790
District 2
Stevenson, Washington 98648
ED CALLAHAN
(509) 427-5141 FAX: (509) 427-4165
District 3
WASHINGTON
May 14, 1993
Katy McGinty
Deputy Assistant to the President for
Environmental Policy
OEOB Room 360
Washington, D.C. 20506
Dear Ms. McGinty:
Thank-you for taking the time to meet with the timber-dependent counties of the
Northwest on May 4th.
My impression of our meeting was that the critical issues that are common among the
timber-dependent Counties were not clearly represented by some of those present.
I
would like to take this opportunity to set the record straight.
The timber issues that have been agreed upon as general unified concepts that are
critical to the solution of the timber dilemma are as follows:
A. Counties and Federal government have a partnership in the forest whereby the
federal government manages the national forests and shares timber income with
the counties. The counties provide essential public services to the forests.
Federal funding, through federal forest receipts or an equal alternative, shall be
continued to counties to maintain adequate services.
B. Healthy communities are essential to the management of the forest. For
communities to survive a level of timber production must be established that
provides certainty to the industry and is sufficient to allow communities to continue
to exist.
C. Federal assistance shall be provided to timber communities to assist in
developing infrastructure for economic diversification in recognition that past forest
funds have been primarily used to build and maintain infrastructure serving the
national forests and other public lands. Other assistance shall be provided to
encourage expanded use of our natural resources such as value-added wood
products.
D. Local governments shall have substantial control over the use of any funds
allocated to counties or communities for economic diversification, employment
programs, and social services. Most timber communities have developed
economic plans and seek funding assistance for plan implementation.
I appreciate the magnitude of the work that still needs to be completed to present an
equitable, compromise position to the timber issue in the Northwest. Skamania County
has summarized their position by saying that if everyone is dissatisfied with the solution
then it must be the right solution. Good luck in the difficult work you have yet to
complete.
Sincerely,
Melissa Carlson-Price
Skamania County Commissioner
THE WHITE HOUSE
WASHINGTON
May 13, 1993
Mr. Clark H. Coan
331 Indiana Street
Lawrence, KS 66044
Dear Mr. Coan:
Thank you for contacting me regarding your efforts to the
South Lawrence Trafficway Project through the Baker Wetlands. I
apologize for the delay in my response.
As you know, I share President Clinton's and Vice President
Gore's commitment to the preservation of our global environment.
I appreciate learning of your work in this arena. I have
forwarded your information to Lieutenant Williams of the Army
Corps of Engineers for his review and response. I am sure that
your concerns will be given every consideration.
Again, thank you for sharing your thoughts with me.
Jathiev McGinty a. Milling
Director,
White
House
Office
on
Environmental Policy
KAM/avl
CC: Lieutenant Williams
331 Indiana St.
Lawrence, KS 66044
April 6, 1993
Ms. Kathleen McGinty
Deputy Assistant to the President
Office on Environmental Policy
The White House
Washington, DC 20500
Dear Ms. McGinty:
Congratulations on your appointment to head the Office on Environmental Policy. I'm sure that
with your experience you will do an excellent job developing environmental policy alternatives for
the President. Also, if the NEPA guideline-making functions of the former Council on
Environmental Quality are transferred to your office, I'm sure you will see that the intent of this
landmark law is fully carried out.
It was revealed in the confirmation hearings of EPA Administrator Carol Browner that she once
stated that wetlands cannot be replicated. Clearly, humans don't understand how complex
ecosystems such as wetlands function and thus can't hope to realistically re-create them. That is
why I believe that the national "no net loss" wetlands policy is off the mark. The definition of
"no net loss" means utilizing mitigation projects that require replication of wetlands. In essence,
high-quality, natural wetlands are traded for low-quality, man-made "wetlands". A flooded field
does not make a functioning wetlands. That is why I am writing you. The Federal Highway
Administration (FHWA) and EPA hope to mitigate a direct taking of nearly 12 acres of the Baker
Wetlands in Lawrence, Kansas by flooding a field and calling it a wetlands.
The South Lawrence Trafficway Project is a development scheme dreamed up in a secret meeting
held by the local chamber of commerce and county commission. Even the official traffic count
projections indicate that the road will not significantly reduce traffic. Most importantly, the
preferred alignment of the South Lawrence Trafficway would directly obliterate 11.89 acres and
drainage alterations created by road construction could shrink the wetlands even more. Likewise,
polluted runoff from the road could harm the pollution-sensitive amphibians such as the Northern
Crawfish frog, which has officially been designated as a Kansas species in need of conservation.
The Baker Wetlands was designated a National Natural Landmark in 1969 by the U.S.
Department of Interior, former owner/custodian of the site. The landmark program was begun in
1962 to "identify and encourage the preservation of the full range of ecological and geological
features that are nationally significant examples of the Nation's natural heritage." The Baker
Wetlands contains "undisturbed examples of wetland prairie, and breeding ground for pintails,
mallards and Canada geese." (Federal Register, Dec. 1, 1980, Part VI, National Registry of
Natural Landmarks)
It should be pointed out that the Final Environmental Impact Statement (FEIS) for the trafficway
is fatally flawed because the NEPA regulations require that "all reasonable alternatives" be
"rigorously explored and objectively evaluated." However, the FEIS fails to examine the
environmental impact of the route south of the Wakarusa River recommended in a 1971 State
Highway Commission study. The recommended "South of the Wakarusa River" route would
completely avoid the Baker Wetlands. Only by fully studying the environmental impact of all
alternatives can decision-makers make rational choices. The NEPA regulations require that a
supplemental or new EIS be prepared if reasonable alternatives are omitted.
Despite repeated requests by local environmentalists, the previous administrators of the FHWA
and the EPA decided to ignore the law by refusing to prepare a supplemental EIS. EPA's own
guidelines require that whenever a Draft EIS fails to consider a reasonable alternative it should
receive an EO-3 rating, which requires the preparation of a new or revised DEIS. However, EPA
Region VII in Kansas City erroneously gave the DEIS an EO-2 rating and cleared it for release as
a final statement.
To ensure compliance with the law, local environmentalists filed a lawsuit against the FHWA and
EPA in February. However, this has not stopped the FHWA from proceeding with right-of-way
acquisition. Thus, we would greatly appreciate it if you would call Rodney Slater, the FHWA
nominee, and Carol Browner and urge them to agree to a settlement stipulating preparation of a
supplemental EIS or, at the mininum, suspension of all right-of-way acquisition activity while the
case is in litigation.
All we want is to have the law followed so that our Nation's precious, vanishing wetlands have a
chance of surviving. Thank you for your assistance in this matter.
Sincerely,
Clark
Clark H. Coan
THE WHITE HOUSE
WASHINGTON
May 26, 1993
The Honorable Sonny Callahan
Congress of the United States
House of Representatives
Washington, D.C. 20515
Dear Congressman Callahan:
Thank you for contacting me regarding your work on the
Forestry 2000 Task Force. It was good to hear from you.
The President and I believe that the Forest Conference held
in Portland on April 2 was a significant step toward the
resolution of the problems facing the Pacific Northwest. As you
may know, three working groups have been established to work on
developing a Forest Management Plan. The first group, working on
ecosystem management assessment, is exploring management
alternatives that attain the greatest economic and social
contribution from the forests of the region and meet the
requirements of the applicable laws and regulations. Working
group two, concerned with labor and community assistance, will
focus on an economic plan to address not just temporary efforts
but long-tern economic development and diversification of
industries. The last working group will work to improve the
relationships among federal and state agencies in the region and
to eliminate impediments that block coordinated action.
I appreciate learning of your interest in being involved in
all forthcoming matters related to forest issues. I look forward
to working with you as we continue to forge a resolution to this
very important matter.
Again, thank you for letting me hear from you.
Sincerely,
Director, Office on
Kathleen A. White McGinty House
Environmental Policy
KAM/avl
SONNY CALLAHAN
OFFICES:
1st District, Alabama
2418 Rayburn Building
Congress of the United States
Washington, D.C. 20515-0101
COMMITTEE ON
(202) 225-4931
APPROPRIATIONS
house of Representatives
2970 Cottage Hill Road
Suite 126
UBCOMMITTEES:
Washington, DC 20515-0101
Mobile, AL 36606
Foreign Operations
(205) 690-2811
Military Construction
May 18, 1993
Toll Free to District Office:
1-800-288-USA1
Ms. Katie McGinty
Office On Environmental Policy
Old Executive Office Building
Room 360
Washington, D.C. 20501
Dear Ms. McGinty:
As Chairman of the Forestry 2000 Task Force, on behalf of the entire membership, I
respectfully request that we be considered as a voice to be heard on whatever solutions may
be forthcoming related to forest issues.
We share your concern on these vital issues and believe both short-term and long-
term solutions need to be considered in the administrative as well as legislative arenas in
order to fully resolve crises facing timber production. Since there are several key issues
approaching that will set the stage for legislation later on in the year, including the
reauthorization of the Endangered Species Act, we would very much like to be included in
the formulation of the proposed policies and legislation to be deliberated in the coming
months.
The Forestry 2000 Task Force, consisting of more than 125 Members of Congress, is
the leading authority on timber matters in the House. Your Insideration of our request
would certainly be appreciated.
Jomy
Member of Congress
SC:gwn
cc: Dale Robertson,
USDA Forest Service
Jun- persona veida
Citton
lan
Serving Baldwin, Clarke, Escambia, Mobile, Monroe and Washington Counties
THE WHITE HOUSE
WASHINGTON
April 29, 1993
The Honorable Jerry F. Costello
Congress of the United States
House of Representatives
Cannon House Office Building
Room 119
Washington, D.C. 20515
Dear Congressman Costello:
Thank you for contacting me regarding the work of Mr. Don
Brown of Abdelmalek Associates, Inc. It was good to hear from
you.
I certainly appreciate learning of Mr. Brown's efforts in
creating a process to clean boiler flue gases. I have passed on
the information to the Administrator Browner and Secretary
O'Leary for their review.
Again, I appreciate hearing from you.
Sincerely,
Kathburd Director, Kathleen A. White McGinty House M.Diay Office on
Environmental Policy
KAM/avl
CC: Administrator Carol Browner
Environmental Protection Agency
Secretary Hazel O'Leary
Department of Energy
JERRY F. COSTELLO
COMMITTEE:
PUBLIC WORKS AND TRANSPORTATION
21ST DISTRICT, ILLINOIS
119 CANNON BUILDING
SUBCOMMITTEES:
AVIATION
WASHINGTON, DC 20515-1321
TEL: (202) 225-5661
FAX: (202) 225-0285
Congress of the United States
SURFACE TRANSPORTATION
WATER RESOURCES
1316 NIEDRINGHAUS AVENUE
COMMITTEE:
GRANITE CITY, IL 62040
house of Representatives
SCIENCE, SPACE, AND TECHNOLOGY
TEL: (618) 451-2122
SUBCOMMITTEES:
FAX: (618) 451-2126
Mashington, DC 20515-1321
ENERGY RESEARCH AND DEVELOPMENT
8787 STATE ST., SUITE 207
SCIENCE RESEARCH AND TECHNOLOGY
EAST ST. LOUIS, IL 62203
TEL: (618) 397-8833
SELECT COMMITTEE ON AGING
April 26, 1993
Ms. Katie McGinty
Director
Office of Environmental Policy
Vice President Gore's Office
O E O B, Room 36
Washington, D.C. 20501
Dear Ms. McGinty:
I am writing to make you aware of an environmentally-beneficial
project that Mr. Don Brown of Abdelmalek Associates, Inc. of St.
Louis has shared with me. Mr. Brown's engineering firm has
created a process which would clean boiler flue gases, increase
power production and liquefy sodium dioxide and carbon dioxide.
I have enclosed for your information copies of documentation he
has given me relating to this project.
The flue gas cooling process will be capable of reducing the
temperature of the boiler flue gas below its vapor dew point
temperature to condense approximately 75 percent of the acid
vapor and recover its heat of evaporation. Users will recover
enough energy from flue moisture to increase their power
production enough to recover their capital investment in five to
six years or less.
This process can burn high sulfur coal without going to the use
of an expensive scrubbing method and reduces coal consumption.
The system will desulfurize gas and liquefy sodium dioxide and
carbon dioxide which are marketable products in other industries.
Several scientists and engineers in both Illinois and Missouri
have reviewed the process and can endorse the process's benefits.
With coal being a major industry and energy source in my
congressional district, I am supportive of technologies which
will allow for cleaner burning coal and simultaneously be in
compliance with federal and state clean air laws. I would ask
that the Administration give this process full consideration for
wide-scale implementation as a means of keeping in line with the
nation's Clean Air Act guidelines.
THIS STATIONERY PRINTED ON PAPER MADE OF RECYCLED FIBERS
A great amount of money and time have been invested in this
process, and I would appreciate your sharing this information
with the proper officials in the executive branch for further
consideration. Please let me know your initial feelings on this
matter. Thank you for your time and attention.
Sincerely,
JERRY F. COSTELLO
Member of Congress
Enclosure
JFC/nc
THE WHITE HOUSE
WASHINGTON
April 30, 1993
Ms. Karen Carlin
President & CEO
National Fund for the
U.S. Botanic Garden
245 First Street, S.W.
Washington, D.C. 20024
Dear Ms. Carlin:
The President asked me to express his
appreciation for your hard work in
preparing the Botanic Garden for his
visit. I would like to thank you for your
efforts in arranging the reception
following the President's Earth Day
Address.
Everyone thoroughly enjoyed
themselves. Again, thanks for your help.
Sincerely,
Ration Kathleen A. MaGioty McGinty
Director,
White
House
Office
on Environmental Policy
KAM/avl
The cookus and lemonade
were great ! Thanks again!
THE WHITE HOUSE
WASHINGTON
April 30, 1993
Mr. Jeffrey Coopersmith
Executive Director
United States Botanic Garden
245 First Street, S.W.
Washington, D.C. 20024
Dear Mr. Coopersmith:
On behalf of the President and the
Vice President, I wish to express my
appreciation for your hard work in
preparing the Botanic Garden for our
visit. Everyone was impressed with the
great display of endangered species
surrounding the President as he gave his
Earth Day Address.
Again, thank you for your help.
Sincerely,
Kati Ms Junty
Kathleen A. McGinty
Director, White House Office
on Environmental Policy
KAM/avl
Thanks again for all
of your hard work !
THE WHITE HOUSE
WASHINGTON
CAstro.CLM
March 3, 1993
Done 3/3
Mr. Luis Castro
Staff Assistant
Office of Senator Paul Simon
230 S. Dearborn
Kluczynski Building, 38th Floor
Chicago, IL 60604
Dear Mr. Castro:
I have received Senator Paul Simon's letter to Mr. Thurgood
Marshall Jr. regarding a scheduling request with the Vice
President made by Kenneth S. Marsh.
As we develop the Office on Environmental Policy, we hope to
consider many suggestions and concerns from a variety of
resources. While it is currently not possible to schedule a
meeting with the Vice President, I would welcome any ideas Mr.
Marsh would like to forward to our office.
Thank you for bringing this to my attention.
Sincerely,
Kathleen McGinty
Director, The White House
Office on Environmental Policy
PAUL SIMON
COMMITTEES
ILLINOIS
LABOR AND HUMAN RESOURCES
JUDICIARY
FOREIGN RELATIONS
United States Senate
BUDGET
INDIAN AFFAIRS
WASHINGTON, DC 20510-1302
February 10, 1993
CAStro.CLM
Mr. Thurgood Marshall Jr.
Legislative Affairs
White House
1600 Pennsylvania Ave.
Washington, D.C. 20500
Dear Mr. Marshall Jr.:
I received the enclosed correspondence from my constituent,
Mr. Kenneth S. Marsh, concerning his ideas on environmental
initiatives. For a more detailed explanation, please see the
attached information.
I would appreciate your giving his request full and fair
consideration. Please advise Luis Castro, staff assistant in
my Chicago office, of your findings as soon as possible.
Thank you for your cooperation and assistance.
My best wishes.
Cordially,
Paulfium Paul Simon
U.S. Senator
230 S. Dearborn (3892)
Chicago, Illinois 60604
(312) 353-4952
PS/lbc
Enclosure
462 DIRKSEN BUILDING
230 S. DEARBORN
3 WEST OLD CAPITOL PLAZA
250 WEST CHERRY
WASHINGTON, DC 20510-1302
KLUCZYNSKI BLDG., 38TH FLOOR
SUITE 1
ROOM 115-B
202/224-2152
CHICAGO, IL 60604
SPRINGFIELD, IL 62701
CARBONDALE, IL 62901
TDD: 202/224-5469
312/353-4952
217/492-4960
618/457-3653
TDD: 312/786-0308
TDD: 217/544-7524
PRINTED ON RECYCLED PAPER
10:14
KS MARSH & ASSOC
19:92
NO. 001
003
COVA
KENNETH S. MARSH
Associates, Ltd.
Consultants to the Food, Pharmaceutical and Packaging Industries
1228
Blakely
Street
Woodstock, IL 60098
USA
(815) 338-3500
Fax (815) 338-3505
Senator Al Gore
Senate Office Building
Washington, DC 20510
November 24, 1992
Dear Senator Gore:
I am writing to offer support, both moral and expert, for your
environmental efforts as you take on your new responsibilities with
the Clinton administration.
As a scientist with expertise in packaging and environmental
concerns, I was an organizer for the workshop on "Food Packaging,
Food Protection and the Environment", held in Washington, DC
November 7-8, 1990. Sixteen scientific societies, representing
over 120, 000 scientists and professionals endorsed the report that
was hand delivered to your office on October 3, 1991. I have also
written and spoken on this subject in the U.S. and abroad (and
would be happy to send a list of papers and seminars). In summary,
I am an environmentalist and a packaging scientist with knowledge
and experience to develop environmental initiatives with intended
beneficial effects, and foresee and eliminate the unintended
negative consequences of specific legislative policy.
Over the past few years I have become increasingly concerned
that proposed "solutions" to solid waste concerns may jeopardize
the level of food safety that was described by C. Everett Koop as
the highest in the world. Proposed legislation that presents a
simple solution to a complex problem can have consequences on food
contamination and/or disease transmission. Even some of the
recognized experts have made statements that are either misleading
or false.
I propose a meeting with you to discuss programs that will
have a beneficial impact on the environment without unintended
negative consequences that are scientifically predictable. T
suggest this because I believe in a cooperative, non-adversarial
interface between government and industry, and because I know what
the industry can do, and should do. The ultimate result can be
reduced red tape, reduced implementation costs, more rapid
implementation, with policies that help the environment and
recognize economic realities. I find this a compelling model for
efficiency and effectiveness.
I look forward to your thoughts on this proposal.
Sincerely,
Kenneth K-5Mg S. Marsh, Ph.D.
President/Research Director
CC: Senator Paul Simon
12/19/92
10:14
KS MARSH & ASSOC
NO. 001
002
COVA
KENNETH S. MARSH
Associates, Ltd.
Consultants to the Food, Pharmaceutical and Packaging Industries
1228 Blakely Street Woodstock, IL 60098 USA
(815) 338-3500
Fax (815) 338-3505
November 20, 1992
Senator Paul Simon
Dearborn Street
Chicago, IL 60
Dear Senator Simon:
I sent the enclosed letter to Senator Gore, to offer assistance on
environmental matters. As your constituent and as an expert in
packaging and the environment, I am asking you to arrange an
audience with Senator Gore. I have sent you information on my
activities in the past, and you were also given a copy of the
report mentioned in the letter (the report was hand delivered to
all Congressman, sent to each Governor, and submitted to interested
agencies by the Institute of Food Technologists Office of
Scientific & Public Affairs, based in Chicago).
I'll call you in mid-December to follow-up on this request.
Thank you for your assistance.
Sincerely,
Kn5
pal
Kenneth S. Marsh, Ph.D.
President/Research Director
United States Senate
WASHINGTON, DC 20510-1302
OFFICIAL BUSINESS
U.S.S.
-
/
05/11/20
COFEB20 P12: 58
ROOM 40 OEOB
Mr. Thurgood Marshall Jr.
Legislative Affairs
White House
1600 Pennsylvania Ave.
Washington, D.C. 20500
!!!!
Caron.CLM (3/2)
THE WHITE HOUSE
WASHINGTON
March 2, 1993
The Honorable Paul E. Caron
House of Representatives
Commonwealth of Massachusetts
Room 473B, State House
Boston, MA 02133
Dear Representative Caron:
I have received your information from Mr. Mark Gearan and
appreciate your concern regarding chlorofluorocarbons. I have
asked the Environmental Protection Agency's Air and Radiation
Division to review the materials you enclosed.
Again thank you for your interest.
Sincerely,
Kathleen McGinty
Director, The White House
Office on Environmental Policy
THE WHITE HOUSE
WASHINGTON
February 2, 1993
The Honorable Paul E. Caron
House of Representatives
Commonwealth of Massachusetts
Room 473B, State House
Boston, MA 02133
Dear Representative Caron:
Thank you for sharing your ideas on balancing environmental
interests with economic growth and your concerns on the issue of
chlorofluororcarbons.
As you know, Vice President Al Gore will be working with the
Administrator of the EPA and the Special Assistant for the
Environment in leading this administration's policy on the
environment. I've taken the liberty of forwarding your concerns
to Katie McGinty, special assistant to the President for the
Environment, as well as Ann Hardison, chief-of-staff to EPA
Administrator Carol Browner. You should be hearing from Katie or
Ann's office in the near future.
Paul, thanks again for sharing your thoughts. It was a
pleasure hearing from you.
Sincerely,
Mark
Mark D. Gearan Grand
Deputy Chief of Staff
I
CC: Ann Hardison
Katie McGinty
M we
KATIF
-
The Commonwealth of Massachusetts
HOUSE OF
PAUL E. CARON
DISTRICT OFFICE:
REPRESENTATIVE
535 MAIN STREET
11TH HAMPDEN DISTRICT
INDIAN ORCHARD, MA 01151
(413) 543-8058
Chairman
Committee on Public Safety
ROOM 473B. STATE HOUSE
BOSTON. MA 02133
(617) 722-2230
January 6, 1992
Mr. Mark Gearan
c/o Presidential Transition Team
1120 Vermont Avenue NW, 12th Floor
Washington, D.C. 20270
Dear Mr. Gearan,
I am writing in regards to what I see as a tremendous
opportunity for President Elect Clinton to quickly begin to
implement an idea which he discussed frequently over the course
of the Presidential campaign. I am referring to the concept of
combining economic growth with environmental concerns. I agree
with President Elect Clinton that the economy does not need
to suffer in order for environmental concerns to be properly
addressed. Rather, the economy, environment and industry can
grow together.
With this in mind I would call your attention to a grave
environmental and economic concern facing our country today, the
issue of chlorofluorocarbon reclamation. I know of this issue
from personal experience with Themaflo of Springfield, a small
family based company in Springfield, Massachusetts, and a
division of American Thermaflo Corporation. Thermaflo of
Springfield, an emerging "green technology" company which has
developed a lightweight freon reclamation unit to recycle liquid
refrigerant, was projected to do $40 million of business this
year. However, most of the projected business fell through due
to the following circumstances.
The problem of chlorofluorocarbon reclamation was addressed
with the Clean Air Act Amendments of 1990, according to which
venting of chlorofluorocarbons (CFCs) was to have been illegal as
of July 1, 1992. However, the regulations outlawing venting of
CFCs were not in place in July, and will not be in place until
April 1993.
The Office of Budget and Management has approved
Environmental Protection Agency regulations to take effect in
April. However, in the OMB approved regulations, mandatory
certification of individuals involved in the venting of CFCs has
been removed, and replaced with voluntary certification. This
means that the EPA will not know who is involved in the affected
industries, and therefore will not be able to enforce the new
regulations.
The combination of the missed July 1992 deadline and the
removal of mandatory certification from the regulations, has
given many companies in the affected industries the misconception
that this law is a "paper-tiger." In our country's present
economic climate, far too many companies will, and many already
have begun to, ignore this law. It will be far cheaper for
companies to continue venting deadly CFCs into the atmosphere,
than to comply with unenforceable new regulations.
In addition, there is a fledgling industry developing in
our country as a direct result of the Clean Air Act Amendments of
1990, the CFC reclamation industry. This industry is indicative
of the "green technology" which is just beginning to emerge
around the world.
"Green technology" is the application of modern technology
to environmental problems. There are many "green technology"
industries developing worldwide today. One of them is CFC
reclamation. The potential for the growth of these industries,
as well as the economic growth which they will spur, is
tremendous. President Elect Clinton could use the CFC
reclamation industry as a centerpiece for an environmental
technology strategy which could put American companies on the
cutting edge of industry of the future. The regulations needed
to enforce the Clean Air Act Amendments of 1990 are already in
place for the President Elect, with one exception, the issue
of mandatory certification. To make the new regulations work,
President Elect Clinton would need to put mandatory certification
back into the regulations, thereby giving EPA the ability to
enforce a much needed law.
To understand the importance of CFC reclamation one only
has to turn to the nightly news. At least once a week we hear
reports of the "hole in the ozone layer." These reports are
accurate in that the hole in the ozone layer is growing, and
subsequently, SO is the threat to the human race due to the
disintegration of the atmosphere. A leading cause of ozone
depletion is the release of CFCs into the atmosphere. If we fail
to address this issue in the near future, it may be too late.
To demonstrate the potential for the CFC reclamation
industry, I will use the above mentioned company in Springfield,
Massachusetts. Thermaflo of Springfield developed and patented
a machine which reclaims freon from the atmosphere. Freon is
the gas used for cooling purposes in refrigerators and air
conditioners. Thermaflo's machine has the ability to gather and
clean freon for further use, in effect recycling the gas.
When the Clean Air Act Amendments of 1990 were passed,
Thermaflo's business increased by volumes. With the increase in
business, Thermaflo experienced a need for more workers. As a
direct result of the 1990 Amendments, Thermaflo, a small family
business, hired an additional 250 employees. When one considers
the subcontractors needed to build the parts for Thermaflo's
freon reclamation devices, it becomes apparent that the 1990
Amendments alone were responsible for the creation of nearly 500
jobs. It should also be noted that these jobs were created in
the midst of a recession, in a state hit harder than most by
the recession, and in a section of the state which suffered
disproportionately from the recession.
Thermaflo projected doing $40 million of business this year.
However, when the July 1, 1992 deadline for implementation of EPA
enforcement regulations passed, followed by the issuance of OMB
approved regulations without mandatory certification, Thermaflo's
business dried up. The 250 additional workers who had been hired
to meet demand have been let go, as have the workers hired by
subcontractors to build Thermaflo's parts. The reasoning behind
this is not difficult to figure out. The companies which needed
Thermaflo's product to comply with the new regulations now
realize that the EPA cannot enforce the regulations as they are,
and therefore there is no reason to buy Thermaflo's product.
At a time when "green technology" is on the rise with
unlimited potential for growth worldwide, I feel that we cannot
destroy our fledgling industries as appears to be the case with
CFC reclamation. OMB's decision to drop mandatory certification
from the regulations, a decision heavily influenced by the
Quayle Competitiveness Council, will render these new regulations
unenforceable. If mandatory certification is not placed back in
the regulations, it will be a death knell for the CFC reclamation
industry.
We need to give our "green technology" industries and
businesses every advantage we can. These industries will soon be
vital to our country, as well as other countries worldwide. The
market for "green technology" is just now being explored, and we
must actively help American businesses pursue this exploration.
When "green technology" begins to boom in the next several years,
American firms should be in a position to compete with their
foreign counterparts, a position they will not be in if such
decisions as the removal of mandatory certification from CFC
venting regulations are allowed to stand.
I would end by once again stating that I feel this provides
President Elect Clinton with the opportunity to put his ideas
concerning economic growth and environmental concerns into action
quickly and efficiently, while at the same time providing support
for "green technology." Thermaflo of Springfield would be more
than willing to assist the Clinton Administration in any way
possible on this issue.
I have enclosed information which will help you better
understand this problem. Thank you for you attention in this
matter and I hope to hear from you in the near future. If you
have any questions regarding this situation, or if you require
additional information, feel free to contact me at (617)
722-2230.
With warmest regards,
PAUL E. CARON
Chairman
Committee on Public Safety
CC: Stephen Scuderi - Thermaflo of Springfield
THERMAFLO
Recycling to make n world of difference
Paul Caron
Ma. State Representative
8 Rhinebeck Ave.
Springfield, Ma. 01129
Dear Paul,
: am sending you the following supporting documents:
1. a memorandum on civil action no. 92-1225; including
declarations by myself, Victoria Kamm of Thermal
Engineering, and Steve Sords of R.S.I.,
2. a separate copy of my declaration,
3. a letter from Ellen Larson of A.C.C.A. to Arthur
Fraas of O.M.B.,
4. 3 letter to the U.T.C. Carrier sales department from
Ruth Johnson,
5. and a Sept. 14 headline article in the Air
Conditioning, Heating & Refrigeration News.
The O.M.B. is currently reviewing refrigerant recycling
regulations proposed by the E.P.A. as required by section 608
of the Clean Air Act.
There are many issues involved with these regulations,
but two have the unanimous support of virtually every
organization and company involved with our refrigeration
industry. Those two issues are:
1. Even though the Clean Air Act has made it illegal to
vent refrigerants as of July 1, 1992, the E.P.A. has
not been able to effectively enforce it.
2. Certifying technicians through a qualified course in
recovery, recycling, and reclamation should be
mandatory, not voluntary.
Both of these issues are discussed in detail by the
supporting documents I have given you. The immediate impact,
however, of not enforcing the law, and not requiring
mendatory certification is to:
1. portray the law as a paper tiger,
2. encourage the venting of refrigerant,
3. hurt companies like mine that have heavily invested
in green recovery technology,
4. and cause approximately 1000 people to lose their
jobs.
THERMAFLO
Recycling to make a world of difference
It: seems that the O.M.B. is the bottleneck for both
these issues. The E.P.A. cannot do its job without their
financial support, and it is the O.M.B. (possibly with the
encouragement of the Quayle Competitiveness Council) that has
removed mandatory certification from the E.P.A.'s proposed
regulations.
It is very important to all of us in this industry that
the new administration be aware of this problem. With the
administration's support we can easily reverse this
situation, prevent the venting, and put people back to work
again.
It seems to me that in most cases industry is reluctant
to implement E.P.A. regulations in a timely manner. Here we
have a rare case of the opposite. The U.S. refrigeration
industry has worked hard, and invested much, to develop the
programs and technology necessary to meet the demands of the
Clean Air Act and the Montreal Protocol. However the E.P.A.,
and especially the O.M.B. have been dragging their feet. We
could be setting an example for the rest of the world to
follow, instead we are suffering from a lack of support.
Very truly yours,
Stephen P.Scudere
Stephen P. Scuderi
Vice President
American Thermaflo Corp.
Worth.ltr
THERMA-FLO
Recycling to make a world of difference
FACTS:
Chlcrofluorocarbons (CFCA) are used 11: many facets of
everyday life. They are used to air condition buildings,
planes, trains and automobiles; they are used to
aterilize medical equipment; they are used to clean
delicate electronic equipment.
LAW:
Clean Air Act Amendments of 1990 (CAAA) state that as of
July 1, 1992 it is unlawful to vent Class I and Class II
substances (CFCs and HCFCs) during the maintenance,
servicing or disposal of equipment using these
substances.
EPA is required to write the regulations for enforcement
of the law. These regs have been recently written and
submitted to OMB. The following steps then take place:
1) EPA incorporates the OMBs comments and changes and
send the regs out for public review (usually 45 days)
2) EPA incorporates changes and resubmits to OMB
3) Rega go into effect
There have been a number of companies that have
manufactured products and developed services to assist
technicians and service personnel recover and recycle
CFCs and their alternatives. Most of these companies
were racing the clock to provide equipment to astiafy
the CAAA deadline as well as the anticipated rega from
the EPA.
Two major events have taken place:
O The July 1, 1992 deadline came end went without the
EPA regs being in place - these rege were originally
going to 1) push the no-venting lew, 2) require
recovery/recycling equipment certification, 3) require
technician certification
RESULT: Many contractors/dealers/techniciana who would
have purchased aquipment have not - research indicates
that they are healtant to purchase aquipment that has
not been certified, healtant to go through a
certification process that has not been finalized and
in general hesitant to de anything until the rega are
in place
O The OMB in 11.8 first Loan at the ERA CASA removed the
requirement for mandatory technician certification
(suggesting instead the it be voluntary)
RESULT: Contractors/dealers/technicians who use the
equipment are now concerned about certification and
are waiting in general for the regs (to see what else
may or may not be included).
These two events in combination with the fact that the
majority of the country is heading cut of the cooling
season and the fact that the cooling season in general
this year was not as "hot" around the country has
created the following problems:
0 Many recovery/recycling equipment manufacturers, who
were racing to insure enough product to cover the
calculated demand, are stuck with a large amount of
inventory, have laid off numerous employees and have
caused the layoffs of personnel from many other
manufacturers and vendors who were supplying them with
parts
o Many wholesale/distribution houses around the country
are stuck with a large amount of inventory causing
economic hardship
o Research indicates that approximately 30% of the
market in the Heating Ventilating and Air Conditioning
(HVAC) niche have purchased equipment to
recover/recycle CFCs. What are the other 70% doing? It
is assumed that these contractors/dealers/technicians
are following previously used practices for dealing
with CFCs - most notably VENTING.
DECLARATION IN SUPPORT
OF MOTION FOR SUMMARY
JUDGEMENT
CIVIL ACTION NO.
92-1225 (SS)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
DECLARATION OF STEPHEN P. SCUDERI
Stephen P. Scuderi under penalty of perjury, affirms and
declares that the following statements are true and correct
to the best of his knowledge and belief, and are based on his
own personal knowledge or on information contained in the
records of AMERICAN THERMAFLO CORPORATION or supplied to him
by employees under his supervision at AMERICAN THERMAFLO
CORPORATION.
My name is Stephen P. Scuderi, 1 am Vice President of
AMERICAN THERMAFLO CORPORATION (THERMAFLO) IN Springfield,
Ma.
Thermaflo is a leading manufacturer of refrigerant
recovery equipment in the United States producing more than
30,000 recovery machines in 1992. Thermaflo is a very active
member of the Air Conditioning Refrigeration Institute (ARI),
having delegates on the ARI-700 and ARI-740 committees, as
well as the ARI committee to certify off site refrigerant
reclaimers. I personally am a member of the Stratospheric
Ozone Protection Advisory Council, an ARI-740 committee
member, and an ISO delegate for technical committee 86 which
is preparing an ISO standard to rate recovery recycling
machinery internationally
I would like to make it clear from the start that 1
believe the people at the EPA have done an excellent job in
the content of the regulations they have proposed to OMB.
Their people have researched the problem and designed a set
of regulations that have been embraced, for the most part. by
our industry. And their ongoing correspondence with our
industry has always been componsive, fair and diligent.
The products in they are late. Very late. Rot from .:
offort. but, Delivery, from :: Front où
And him, has caused problems for many
complines investing in this area.
Our company Vad typical of several small companies that
Have of green Dechnology that MO could
We developed the recovery/recycling equipment necessary
for our industry to meet the requirements of the Clean Air
Act and the Montreal Protocol. When the demand for this
equipment skyrocketed. we hired the people.
In Springfield, Ma., Thermaflo hired more than 200
people, and created more than 500 jobs when you consider all
of our subcontractors. Our production capacity rose to meet
the demand. and we were receiving inquires from all over the
world about our product. The possibility of exporting this
green technology was excellent.
Unfortunately, the EPA was SO for behind in promulgating
its regulations that it was having trouble effectively
enforcing the law. This became apparent shortly after July
1, of this year.
As a result some contractors perceived the law, however
incorrect they may be, SS a paper -tiger. Some continued to
vent refrigerants. This created an unlevel playing field in
which the contractors who were trying to adhere to the law
had to compete against the ones who were illegally venting.
Therefore, the demand for this equipment dried up, and we had
to lay our people off.
In Thermaflo almost all 200 employees have been laid
off. We expected some attrition since this a cyclic industry
tied to our cooling season (perhaps 25%), but the sudden and
drastic drop in demand for the product can only be
attributable to the lack of enforcement of the law.
I do not wish to advocate a witch hunt against our
ultimate customers, the contractors. If violators are caught
venting they must be given their constitutional right of due
process. Also consideration must be given to the fact that
industry was having trouble supplying the units in time to
meet the demand.
But the law is a good one, and it must be made clear to
everyone that it will be enforced. The longer it takes the
EPA to finalize its regulations, the harder this will be.
Pursuant to 28 U.S.C. section 1 1746, 1 declare under
penalty of perjury that the foregoing 1S true and correct to
the best of my knowledge and belief.
Executed this 16th day of October, 1992, at American
Thermaflo Corporation in Springfield, MA.
STEPHEN P. SCUDERI
NOV. 12, 1992
Dear liff This just came in.
Stephen P.Scoderr
INDUSTRY NEWS
Mandatory CFC certification seen as not worth the costs
PALM SPRINGS, CALIF. - The
must determine that the benefits of
zines, and by lobbying through
tor,' and we've got them," she ex-
White House Office of Management
mandatory certification outweigh
their associations.
plained. "There are enforcement ac-
& Budget is opposed to making CFC
its costs. They obviously don't see it
Several contractors questioned
tions going on right now."
technician certification mandatory
that way.
the effectiveness of the no-venting
The refrigerant regulation ses-
because it figures it's not worth the
She told the contractors that if
rule that went into effect July 1. Ot-
sion took place during the recent
trouble
they want certification to be manda-
tinger, however, said many tips on
Mechanical Service Contractors
As EPA's Deborah Ottinger OX-
Lory they need to communicate that,
violators have been received and are
Ass'n convention here.
plained to service contractors here
including letter writing to elected
being pursued. "We just can't point
MSCA chairman Kenneth Wohl-
recently, "To raie in favor of it. OMB
officials. EPA. OMB and trade maga-
to someone and say, 'there is a viola-
farth related that an MSCA member
contractor recently reported an un-
announced EPA inspection of a ser-
vice site. The technician had to ex-
plain his recovery and recycling
procedures.
Lack of mandatory technician cer-
tification in the Environmental Pro-
tection Agency's pending proposed
CFC rules. alternative refrigerant
development and use, and the man-
agement of future refrigerant sup-
plies were thoroughly discussed by
contractors at the MSCA convention.
According to Wohlfarth, the
group sought to give its members
the most timely refrigerant infor-
mation possible.
For example. James Wolf. chair-
man of the Alliance for a Responsi-
ble CFC Policy. spoke to the 240 att-
tendees just two days after meeting
with government officials about ac-
celerated CFC phaseout dates.
"We've done such a good job phas-
ing out production and reducing the
need for new [CFC] refrigerant.
[federal officials] are going to make
us work even barder." Wolf said.
"We've proven We can reduce the
amount of refrigerant we need by SO
much. we're going to be challenged
to reduce even further, and at a fas-
ter rate."
It's expected that parties to the
Montreal Protocol, meeting at the
end of this month in Copenhagen,
Milwaukee's new FALCON rotary hammer.
Denmark. will amend the treaty SO
as to phase out CFCs by the begin-
American-made. American-tough.
ning of 1996.
Homebuilders install
The NEW Milwoukee FALCON IS born and bred American And it's raising some heavy-duty dust.
This lightweight (6-1 gounds) rolary hammer 3 no lightweight when i: comes to serious work.
sprinklers in NAHB
motor,
show model house
SINESS NEWS PUBLISHING CO.
OUR 67TH YEAR or INDUSTRY SERVICE
$3.00
September 14,
ek
TECHNICIAN CERTIFICATION
3
REMOVED FROM EPA RULE
10
by Thomas A. Mahoney
In a key move, the Office of Manage-
questions to EPA, for use by certified
Working with Ferris State, A
12
ment and Budget removed the require-
training establishments. Whether all of
has certified another 10,000 people
ment for mandatory certification of ser-
that preparatory work has been wasted
also wants to retain mandatory ce
14
vice technicians as part of the proposed
remains to be seen.
cation.
(and long-awaited) refrigerant recycling
The earlier proposal of mandatory
Moreover, equipment manufa
rule.
certification won support from many
ers have begun training service tel
21
Last week, in response to OMB's
because it promised to help rid the
cians for certification.
direction, EPA began working on re-
industry of unqualified service people,
The only way to keep manda
vised language that will call for a volun-
said Dick Shaw, a program manager at
certification is by an overwhelmir
22
tary certification program.
Ferris State University, Big Rapids,
dustry response, according to Bar
This is the only "significant" change
Mich.
to the draft rule, which has been circu-
Withoutevidence of certification, these
(Next Page, Please)
lating within the industry for several
people would have been unable to buy
3
months, said EPA's Debbie Ottinger.
refrigerant from wholesalers, signifi-
The proposed rule - to be published
cantly preventing them from competing
within eight weeks - will invite indus-
against those who had been tested and
Four companies
3
try comments on the desirability of a
certified.
mandatory certification plan, she said.
achieve ARI's
Restraint of trade?
However, it is not certain that an
4
outpouring of favorable comments for
However, without mandatory certifi-
r-r certification
mandatory certification would change
cation, wholesalers who refused to sell
8
OMB's mind. OMB reviews proposed
refrigerant to non-certified technicians
ARLINGTON, Va. - Four addit
regulations to determine their cost to
could find themselv charged with re-
companies are participating in the
the industries being regulated.
straint of trade, Shaw said.
Conditioning and efriger
26
The requirement for mandatory cer-
"The government is shooting itself in
Institute's (ARI's) certification pro
tification of refrigerant recovery-recy-
the foot," said Bill Podd, who runs the
for recovery-recycling machines. '
34
cling-reclaim units remains, she said.
education and certification program for
are:
Sales of these units have declined
the Refrigeration Service Engineers
Carrier Corp.; Goodman Man
sharply, as many contractors watched
Society (RSES).
turing Corp.; ReKlame, Inc.; and
the July 1 no-vent deadline pass with-
The society already has tested more
Trane Company.
out dramatic enforcement action by
than 20,000 service technicians on the
Also, three other companies
5
EPA.
assumption that its program would be
signed license agreements and wi
grandfathered-in by EPA.
come participants upon passing in
Industry dismay
Podd said lack of mandatory certifica-
qualifying tests, the institute sai
29
Several national service groups,
tion would result in shoddy work prac-
The addition brings the total of
which have invested time and money in
tices.
ticipating qualified companies to
24
testing and training people for certifica-
tion, expressed dismay at the action.
They also are meeting in Washing-
Fixing customers
ton this week to plan ways to get
mandatory certification back into the
WHENIT COMES to service, Sibley Services has therightattitude. Technicians don't
31
rule. The meeting is sponsored by the
just repair equipment -they fix customers. The contractor's customer 'partnering'
crets
5
Air Conditioning Contractors of
philosophy works. Story on page 28.
ew
30
America.
In a series of meetings over the past
year, contractor groups, manufactur-
ers, and other industry specialists have
met at EPA's invitation to structure a
is stitched
training and testing program to comply
32 and 33.
with the expected mandatory certifica-
mbers for
tion program.
nation and
Earlier this summer, the group sub-
mitted a uniform data bank of test
ells energy savings
Technician certificatio 1
school district
(Continued from Preceding Page)
Another stumbling block could
Dolim, of the Mechanical Service
crop up if the presidential election
ares through traditional funding
fies that energy and operationa
Contractors of America.
results in a new administration,
ources, such as the California
savings will be sufficient to make
"We don't support a voluntary
Dolim said. Any final rule would
tate Deferred Maintenance Pro-
lease and maintenance payments
certification program. We would
not be issued before the Nov. 3 elec-
ram.
Any shortfall will be made up by
rather have no program at all than
tion, and a new administration may
However, many ideas never came
Honeywell.
a voluntary one," Dolim said. "It
freeze any regulations, pending a
fruition due to lack of funds.
The company worked with the
won't work, and it has proved not to
new team at EPA.
The Honeywell design-build pro-
school staff to identify equipment
work in other circumstances.
In its review of the draft rule,
ram used a 10-year lease-pur-
additions and retrofit solutions.
"Unless it's mandatory, the fly-
OMB agreed to retain several other
nase contract funded from the
The company will provide the dis-
by-night contractors won't get
provisions, such as requiring that
suance of certificates of partici-
trict with hvac automation and
trained and certified. They'll con-
reclaimed refrigerant meet ARI
ation. After construction is com-
efficiency improvements, lighting
tinue to do what they've always
Standard 700 purity levels.
leted, energy and operational
retrofits, and controls moderniza-
done, which is harming us."
Also untouched is the rule's re-
avings will provide the cash flow
tion.
Her group recently issued a re-
quirement that HCFCs, such as R-
) make lease payments.
Further information on the pro-
frigerant-handling guideline to be
22, be subject to the recycling rule.
The district also contracted with
gram is available by calling 800-
incorporated in all local training
Once published, there will be a
[oneywell to provide maintenance
345-5770, ext. 930.
programs, and purchased a new data
public meeting at which industry
nd training over the 10-year con-
base system to accommodate a test-
specialists can give their opinions,
ract. The savings guarantee speci-
ing program.
along with a 45-day period for writ-
ten comments.
'SMACNA issue'
now Oct. 12
A change in the dates of the
Sheet Metal and Air Condi-
Introducing
tioning Contractors' National
Association's (SMACNA's) an-
nual meeting to Oct. 12-15 has
made it necessary for The News
to distribute the Oct. 12 issue
at that event. The News' 1992
Editorial Calendar had shown
bonus SMACNA distribution
20 SEER,
of Oct. 19 issues. This is no
longer possible.
ABC attacks
Bush for backing
Iumidity Control,
union agreemen
WASHINGTON - President
Bush's refusal to withdraw his
support of the union-only agree-
ment on the Boston Harbor
Cleanup Project has caused the
Associated Builders and Contrac-
And Hot Water.
tors (ABC) to withhold re-election
support.
In a brief submitted to the Su-
preme Court, the ABC announce-
ment said, "The administration
reiterated its support of the union
only project provision on the $6. 1
billion Boston Harbor Cleanu;
Seriously!
Project - the largest public works
project in the history of Massa
chusetts. The Supreme Court has
agreed to review the case this fall.
ABC president Steven Westra, a
general contractor from Waupun,
Wis., said he was "outraged by the
nt SEER with dehumidification and water-heating: almost sounds hard to
President's support of the union
it? But that's just what you get with "Powermiser." the amazing new
only provision' on the project, and
Transport Refrigeration
& Air Conditioning
September 16, 1992
ATTN: SALES DEPARTMENT
A decision has been made to cease production of our TotalClain and
TotalSave product lines effective immediately. This decision was
reached after thoroughly raviewing market conditions related to
enforcement of the Clean Air Bill, without this enforcement, we do
not anticipate any further demand for these products above the
levels that we have already produced.
Flouse STOP all component and assembly production and shipments
related to these product lines IMMEDIATELY. We have identified the
affected purchase orders on the attached sheet,
We recognize that this situation may result in excess inventories
of raw and finished material, and & Buyer from Carrier Transicold
Purchasing Department will be contacting you within the next few
weeks to assess the magnitude and address the disposition of all
materials.
We truly regret that this decision had to be made and we appreciate
your understanding and prompt attention to this matter.
Sincerely,
3x1th Jonan
(Mrs.) Ruth Johnson
Carrier has laid off
Purchasing and Material
Control Manager
more then 100 people.
Stephen PSaderi
/01a
11/10/92
RJ-9/16/92
UNITED
TECHNOLOGIES
CARRIER
TRANSICOLO
CARRIER TRANSICOLO DIVISION CARPIER CORPORATION
P.O. BOX 4005
SYRACUSE NEW YORK 1322:
422-6000
M.
occa
Air Conditioning Contractors of America
August 28, 1992
Arthur Fraas
Natural Resources Branch Chief
Office of Information and Regulatory Affairs
office of Management and Budget
3019 New Executive office Building
725 17th Street, NW
Washington, DC 20503
Dear Mr. Fraas:
I am writing LU you on behalf of the Air Conditioning
Contractors of America (ACCA) to offer some observations on
proposed refrigerant recycling regulations now under OMB review
(P.L. 101-549, Title VI, Section 608). These regulations will
have a momentous effect on our members.
ACCA is a nonprofit trade association of heating, ventilating,
and air conditioning (HVAC) contractors. These are firms,
individuals and/or corporations who design, install, service and
repair environmental systems. ACCA represents nearly 3,000
members and 50 affiliated chapters across the country.
Associate members or ACCA include HVAC equipment manufacturers,
wholesalers and distributors, vocational and technical schools,
and utilities.
Air conditioning and refrigeration contractors already are
feeling the impact of the Clean Air Act Amendments of 1990. The
July 1, 1992, prohibition on intentional venting of
chlorofluorocarbon (CFC) and hydrochlorofluorocarbon (HCFC)
refrigerants requires businesses to invest in costly refrigerant
recovery and/or recycling equipment as well as training for
service technicians. We believe that some aspects of EPA's
draft proposal (5/21/92) are right on target. Other proposals,
however, would severely impede contractors' abilities to comply
with Section 608 requirements and maintain a viable business.
ACCA will submit official comments to EPA when the proposed rule
is published. AS you assess the government's role in these
regulations, please consider the air conditioning contractor's
perspective on the following issues: 1) recycling restrictions;
2) leak repair: 3) refrigerant sales; 4) recordkeeping; 5)
technician certification; 6) HCFC controls; 7) enforcement.
1513 16th Street. N.W. Washington, D.C. 20036 (202) 483-9370 FAX (202) 234-4721
Mr. Arthur Fraas
August 28, 1992
Page Two
1) Restrictions on Recycling
EPA proposes to require that refrigerant which changes ownership
must be reclaimed to ARI Standard 700-88 specifications.
ACCA believes that such a requirement will effectively prohibit
the practice of recycling. Eliminating one of the two options for
contractors and consumers and may even reduce compliance with
for dealing with recovered refrigerant will increase costs
Life law ayainst intentional refrigerant roleases. contractors
should be able to choose appropriate, cost-effective methods for
complying with the law.
After recovering refrigerant, contractors should be able to
decide whether to:
return the used refrigerant to the system without any
cleaning or reprocessing,
recycle the refrigerant using an EPA-approved recycling
machine, or
transport the rofrigerant to a reclamation facility.
In an ACCA survey this spring, 47% of the respondents indicated
they planned to implement a combination of recovery, recycling
and reclamation in their contracting business. 608 said that
EPA's proposal to prohibit the use of recycled refrigerant when
there was a change in ownership would seriously hamper their
compliance plans.
Many contractors are now recycling refrigerant for their
customers at rates significantly lower than the cost of new or
reclaimed refrigerant. Customers reportedly are pleased with
the option and respond positively to the idea of recycling.
Prohibiting recycling at the inception or this CFC containment
effort could have adverse long-term consequences. Without a
market for recycled refrigerant, technological advances in
recycling equipment will be stifled as well as improvements in
the on-site capability of removing refrigerant contaminants.
Many areas of the country are not serviced by reclamation
centers. Contractors in these areas would be at a clear
disadvantage ir recycling was not an option for complying with
the law.
Mr. Arthur Fraas
August 28, 1992
Page Three
Contractors who purchased recycling equipment in preparation for
the July 1, 1992 no-venting deadline will suffer financially.
Furthermore, Section 608 distinctly calls for the "recycling" of
ozone-depleting refrigerants.
While ACCA believes that EPA is going beyond its ozone-
protection mandate by virtually eliminating the recycling
option, we appreciate the need to safeguard the quality of used
refrigerant.
Therefore:
ACCA supports the development and use of a recycled
refrigerant purity standard.
In the absence of an approved standard, ACCA supports
adoption of industry-recognized guidelines for recycling
refrigerant.
TO avoid the emergence of unregulated and unmonitored
"recycling centers," ACCA recommends that recycled
refrigerant be restricted for use only in appliances which
are serviced by the same contracting firm.
2) Leak Repair
ACCA strongly urges EPA to require the repair of substantial
refrigerant leaks.
Common sense tells us that charging leaking appliances is, in
fact, "intentional venting." owners as well as contractors and
technicians should be held responsible for preventing
refrigerant releases. The credibility and effectiveness of
Section 608 already has been undermined by this omission.
Environmentally-resporsible contractors have "walked away" from
jobs where the owner insists on "topping off" a leaking system,
only to be replaced by contracting companies who have no
intention of complying with any portion of the law and will
gladly oblige.
Mr. Arthur Fraas
August 28, 1992
Page Four
3) Purchase of Refrigerant
The key to making EPA's ozone-protection rules work, we believe,
is to restrict the sale of ozone-depleting chemicals. EPA
proposes to allow only certified technicians to purchase
refrigerant. ACCA strongly recommends that refrigerant purchase
be tied instead to registered contracting companies.
This would allow the contracting company to retain its current
relationship with the wholesaler -- company owners, not
technicians, order and pay for refrigerant. In addition,
contractors need to be allowed to use "helpers" and other
lower-skill personnel (rather than higher-paid technicians) to
pick up refrigerant from the wholesaler and deliver it to the
shop or job site.
Contractor registration could easily be accomplished. EPA
proposes to require contractors to submit a statement to EPA
verifying the ownership of certified recovery equipment and
employment of certified technicians. A contractor registration
program need only take this requirement a step further by
attaching registration numbers to the signed statements.
Pre-numbered, carbon-copy forms could easily be developed for
this purpose.
The contractor-owner is responsible for controlling the
distribution of the refrigerant. Moreover, the contractor-owner
is ultimately responsible for complying with the law and is most
vulnerable to penalties and fines.
If ozone-depleting refrigerants are indeed a controlled
substance, they should be treated as such and sold only to
law-abiding companies.
4) Recordkeeping
Most of the recordkeeping requirements in EPA's 5/21/92 draft
are reasonable. For their own accounting needs, contracting
companies will keep inventory of refrigerant purchased and
consumed by each customer. However, ACCA opposes the proposed
requirement to keep a record of the amount of refrigerant
purchased and used by their company each month. such a record
serves no useful purpose either to the EPA or to the contractor.
Mr. Arthur Fraas
August 28, 1992
Page Five
5)
Technician Certification
ACCA wholeheartedly supports training and testing for persons
who service air conditioning and refrigeration systems.
Training in the proper procedures for recovery, recycling,
reclamation, leak repair and safe handling of ozono-depleting
refrigerants is critical for reducing CFC/HCFC emissions.
Testing for knowledge of Clean Air Act requirements and
environmental consequences of refrigerant venting will greatly
increase awareness of the issue and compliance with EPA
regulations.
We think it is entirely appropriate for EPA to require
certification. Industry will, and already is, conducting
training programs and is working closely with EPA to develop
industry-accepted tests. Most technicians have little if any
experience working with recovery/recycling equipment. It is in
the best interest of the public and the environment that
technicians do not release refrigerants into the atmosphere, a
practice that was standard operating procedure for many years.
Training ic cssential to change old ways, and testing is needed
to prove that technicians are indeed competent.
From the contractor's point of view, training and testing of
technicians has its costs, but the long term benefits far
outweigh the drawbacks. In the HVAC industry, as in others,
time is money. Proper training for technicians in the new Clean
Air Act requirements will help technicians explain the new law
to consumers quickly and accurately. Proper training in the
technical aspects of recovery and recycling will reduce time on
the job, improve productivity for a company, and will educate
technicians in the safe handling of refrigerants and proper
disposal of used oil and other materials. Moreover, proper
training will provide more assurance to contractors that their
employees are not violating the law.
6) HCFC Controls
CFCs are widely recognized to be more harmful to the Earth's
ozone layer than HCFCs and are scheduled for phaseout on
December 31, 1995. HCFCs are scheduled for phaseout in 2030.
ACCA believes that HCFCS are critical as a transition
refrigerant as we move to CFC alternatives.
Mr. Arthur Fraas
August 28, 1992
Page Six
While HCFCs are less destructive than CFC5, HCFCs do have a
relative ozone depletion potential and are included in the
no-venting law. Although not required by law, EPA is proposing
to include HCFCs (Class II) substances in the proposed recycling
regulations. ACCA believes this is appropriate. Because
deliberate venting of HCFC refrigerants is prohibited, what will
technicians and contractors "do" with the chemicals? It makes
sense to recycle these valuable substances as well.
7) Enforcement
All of the efforts associated with the new ozone-protection law
and the considerable costs to thousands of U.S. businesses will
be pointless if the law is not aggressively enforced. HVAC
contractors who comply with this law are concerned they will be
undercut by competitors who do not comply and who do not incur
the same costs. Unfortunately, our industry has had a bad
experience in this regard. State licensing laws often are not
enforced, allowing many unscrupulous "contractors" to operate
freely and rendering contractor licensing virtually meaningless.
Our other concern is that contracting companies who comply with
the law will be held liable for a disproportionate share of
refrigerant venting violations. Contractors have the
responsibility to develop a company policy against venting, for
purchasing proper recovery/recycling equipment, and for training
their technicians. Beyond that, technicians who deliberately
violate the company's policy and the law should be held
accountable. HVAC equipment owners who insist on re-charging a
leaking system should be held accountable.
In summary, ACCA supports efforts to protect the Earth's ozone
layer. We have explained the July 1, 1992, venting prohibition
to our members and are trying to tell them how to comply even
though regulations have not yet been published. As outlined
above, we believe that many of the requirements EPA might
propose to implement this law are appropriate. Other proposals
need more careful scrutiny, however, as to the impact they will
have on a substantial number of U.S. businesses.
We appreciate your consideration of our views and invite OMB to
contact ACCA with any questions.
Sincerely,
Wen
Ellen Larson
Director of Government Relations
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MARYLAND ENVIRONMENTAL INTEREST GROUP,
)
et al.
)
:
)
Plaintiffs,
)
)
V.
)
)
Civil Action No.
WILLIAM K. REILLY, in his official
)
92-1225 (SS)
capacity as Administrator,
)
United States Environmental
)
Protection Agency,
)
)
Defendant.
)
)
REPLY MEMORANDUM IN SUPPORT OF
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Fern L. Shepard
SIERRA CLUB LEGAL DEFENSE FUND
1631 Glenarm Place, Suite 300
Denver, CO 80202
(303) 623-9466
Howard I. Fox
D.C. Bar No. 322198
SIERRA CLUB LEGAL DEFENSE FUND
1531 P Street, N.W., Suite 200
Washington, D.C. 20005
(202) 667-4500
Attorneys for Plaintiffs
TABLE OF CONTENTS
1
INTRODUCTION
I.
EPA MISINTERPRETS THE RELEVANT LAW GOVERNING THIS COURT'S
EQUITABLE POWERS TO FASHION AN APPROPRIATE REMEDIAL SCHEDULE
4
II. EPA'S BURDEN IN ESTABLISHING THAT IT CANNOT MEET A MORE
8
EXPEDITIOUS SCHEDULE IS ESPECIALLY HEAVY
A.
In Framing Equitable Relief, Courts Must Follow Congres-
sional Mandates Unless EPA Demonstrates Infeasibility
8
1.
EPA Has Not Met Its Burden To Prove
9
Impossibility
2.
EPA's Excuses Do Not Justify A Lengthy Remedial
11
Schedule
B.
EPA's Unnecessarily Lengthy Proposed Schedule Will Adversely
Affect Public Health, The Environment, And Businesses Depen-
dent On The Issuance Of These Regulations
14
C.
The Court's Order Should Include Specific, Binding
17
Compliance Milestones
17
CONCLUSION
i
TABLE OF AUTHORITIES
CASES
Alabama Power Co. V. Costle, 636 F.2d 323 (D.C. Cir. 1979)
6, 8
American Lung Ass'n V. Reilly, No. 92-6060
7
Environmental Defense Fund V. Reilly, 89-0598
10
In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991), cert.
denied, 112 S. Ct. 297 (1991)
4, 5
Environmental Defense Fund V. Thomas, 627 F. Supp. 556
7
(D.D.C. 1986)
Illinois V. Costle, 12 Env't Rep. Cas. (BNA) 1597 (D.D.C.
7
1979)
Natural Resources Defense Council V. EPA, 595 F. Supp. 1255
(S.D.N.Y. 1984)
12, 15
Natural Resources Defense Council V. Train, 510 F.2d 692
(D.C. Cir. 1975)
5, 6
Natural Resources Defense Council V. United States
Environmental Protection Agency, 1992 WESTLAW 15767
(E.D.N.Y. July 6, 1992)
3, 7,
8, 9,
10, 12
New York V. Ruckelshaus, 21 Env't Rep. Cas. (BNA) 1721
8
(D.D.C. 1984)
Public Citizen Health Research Group V. Auchter, 702 F.2d
1150 (D.C. Cir. 1983)
15
Sierra Club V. Gorsuch, 551 F. Supp. 785 (N.D. Cal. 1982)
6, 8,
12
Sierra Club V. Thomas, 658 F. Supp. 165 (N.D. Cal. 1987)
6, 8,
12, 14
State of Illinois V. Gorsuch, 530 F. Supp. 340 (D.D.C.
14
1981)
State of New York V. Gorsuch, 554 F. Supp. 1060 (S.D.N.Y.
1983)
6, 7,
8, 12
Sun Enterprises, LTD V. Train, 532 F.2d 280 (2d Cir. 1976) 12
ii
STATUTES
42 U.S.C. § 7671 (a) (1)
8, 16
FEDERAL REGISTER NOTICES
17
55 Fed. Reg. 54065.
jii
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MARYLAND ENVIRONMENTAL INTEREST GROUP,
)
Civil Action No.
et al.
)
92-1225 (SS)
)
Plaintiffs,
)
)
V.
)
)
WILLIAM K. REILLY, in his official
)
REPLY MEMORANDUM
capacity as Administrator,
)
IN SUPPORT
United States Environmental
)
OF PLAINTIFFS'
Protection Agency,
) MOTION FOR SUMMARY
)
JUDGMENT
Defendant.
)
)
INTRODUCTION
In response to plaintiffs' motion for summary judgment,
defendant Reilly concedes that section 608 (a) (1) of the Clean Air
Act imposed a statutory duty to promulgate regulations for the
recapture and recycling of ozone depleting compounds by January
1, 1992. He also concedes that he failed to promulgate these
regulations. Because no genuine issues of material fact exist as
to defendant Reilly's violation of his statutory duty, summary
judgment should be granted.
The only remaining issue for resolution in this action is
the fashioning of an appropriate remedial schedule for this clear
violation of law. Defendant Reilly (hereinafter also referred to
as "EPA") argues that competing agency priorities and resource
needs require a schedule that would not result in the promulga-
tion of final National Recycling and Emissions Reduction Program
regulations until May 31, 1993, eighteen months after the Clean
Air Act deadline. Yet all but 45 days of EPA's proposed 7 1/2
month schedule consist of further governmental review of the
608 (a) (1) regulations, even though the government has been
working on the regulat ons since 1990. Claussen Declaration at
I 12, attached to Opposition of William K. Reilly, Administrator,
United States Environe ntal Protection Agency, to Plaintiffs'
Motion For Summary Jud ment ("EPA Memorandum").
EPA fails to explain why it requires an additional month
simply to publish draft regulations for comment when these draft
regulations have been completed since June of this year. The
agency further fails to explain why it requires five months for
two separate tiers of agency review of final regulations and why
these two levels of review cannot occur concurrently. Finally,
EPA continues to insist on a schedule that provides for further
Office of Management and Budget ("OMB") review, despite the fact
that OMB review is not legally authorized where a statutory
deadline has been violated. Memorandum In Support Of Plaintiffs'
Motion For Summary Judgment ("Plaintiffs' Opening Memorandum") at
21-22.
As an alternative, plaintiffs propose an expeditious, yet
reasonable, schedule for promulgation of the final National
Recycling and Emissions Reduction Program regulations in light of
EPA's failure to even publish draft regulations nearly 11 months
after the statutory deadline. EPA can publish the draft
regulations immediately, and should be ordered to do so.
However, in the inter st of narrowing the issues before the
Court, plaintiffs acc at EPA's proposed schedule to the extent it
2
requires defendant Reilly to sign the draft regulations and
transmit them to the office of the Federal Register by November
5, 1992, with publication by November 12, 1992. Claussen
Declaration at 11 20-m. ---
Plaintiffs also accept the 45-day
notice and comment period urged by EPA, ending on December 27,
1992. Id. at 1 22. the only remaining issue, then, is the final
promulgation date.
In its moving papers, plaintiffs requested that the Court
order EPA to conduct its review of comments and revision of the
regulations within 30 days. In the interest of further narrowing
the issues before the Court to expedite the Court's decision,
plaintiffs request that the Court order EPA to conduct its review
of comments, revision of the regulations if necessary, and
promulgation of final regulations within 90 days or by March 31,
1993, at the latest. Thus, under plaintiffs' proposed schedule,
EPA has 5 1/2 months from today's date to complete this long
overdue rulemaking. This schedule is feasible and more than
reasonable. See Natural Resources Defense Council V. United
States Environmental Protection Agency, 1992 WESTLAW 158767 at 2
(E.D.N.Y. July 6, 1992) (Exhibit 9 to Plaintiffs' Opening Memo-
randum) (EPA ordered to promulgate similarly overdue regulations
required by Clean Air Act in four months with 60 days for final
agency review).
Promulgating final regulations is critical to averting
further stratospheric ozone depletion and global warming -- twin
threats to public health and the environment. Plaintiffs'
3
Opening Memorandum at 0-11. EPA's inaction -- which the agency
candidly admits violates federal law -- has thwarted Congress'
carefully crafted solution to these global crises. Plaintiffs
respectfully request that the Court expeditiously rule on their
motion and accept their proposed compliance schedule to ensure
that the 608 (a) (1) regulations are promulgated on the fastest
schedule feasible.
I.
EPA MISINTERPRETS THE RELEVANT LAW GOVERNING THIS COURT'S
EQUITABLE POWERS 20 FASHION AN APPROPRIATE REMEDIAL
SCHEDULE
To support its lengthy remedial schedule, EPA asserts that
this Court should give due deference to the agency's evidence of
its priorities and capabilities when fashioning an appropriate
administrative schedule. EPA Memorandum at 6-10. EPA has
misinterpreted the relevant law governing the court's equitable
powers when a statutory deadline for promulgating regulations has
been missed.
EPA first cites to In re Barr Labs., Inc., 930 F.2d 72, 74
(D.C. Cir. 1991), cert. denied, 112 s.ct. 297 (1991), to support
its due deference argument. Id. at 7. This case simply is
inapposite. In Barr Labs, a drug company challenged the Food and
Drug Administration's ("FDA") failure to act promptly to either
approve or disapprove the company's generic drug applications.
930 F.2d at 73. The issue presented was whether the court should
exercise its equitable powers to order FDA to expedite
consideration of Barr Laboratory's application over other pending
applications. Id. Circuit Judge Williams concluded that the
4
case was not appropriate for equitable relief because while
prompt disposition of Barr's application might be in the public
interest, SC would the disposition of other pending applications.
Id.
In this case, EPI. has conceded that this Court should
exercise its equitable powers to fashion an appropriate remedial
schedule. EPA Memorandum at 2 ("The sole issue in this case is
therefore establishmen of a reasonable schedule for final agency
action. "). Thus, the discussion in Barr Labs about whether the
court should exercise its discretion, and the language quoted in
EPA's memorandum, is irrelevant to this case. More to the point,
nowhere in Barr Labs Coes Judge Williams state or even suggest
that a court should dafer to an agency's position on its priori-
ties and capabilities in fashioning an appropriate administrative
schedule when the agency has failed to promulgate regulations by
a statutory deadline.
EPA next argues that the Court should take "into account the
agency's assessment of its own priorities and capabilities" in
fashioning a remedial schedule, relying on Natural Resources
Defense Council V. Train, 510 F.2d 692 (D.C. Cir. 1975). EPA
Memorandum at 7-10. EPA also misreads this case. In Train, the
District of Columbia Circuit considered EPA's failure to issue
effluent guidelines required under the federal Clean Water Act.
In its decision, the court divided the effluent guidelines into
two groups: those covering the industries specifically listed in
the Act as requiring guidelines within one year ("Group I"), 510
5
F.2d at 704-05, and those that were not so listed ("Group II"),
id. at 705-06.
As to the effluent guidelines for Group II industries, the
Court of Appeals found that EPA had some limited discretion with
regard to timing because Congress had not included an explicit
deadline. Id. at 710-14. In discussing the appropriate deadline
for the Group II industries, where no explicit statutory deadline
existed, the Train court stated that under some circumstances
SPA's proposals might be followed where the court is convinced
that EPA "has in good faith employed the utmost diligence in
discharging [its] statutory responsibilities," because a party
should not be compelled to "to do an impossibility. 111 Id. at
713. The Train court cautioned, however, that courts should
"scrutinize [impossibility] claims carefully since officials may
seize on a remedy made available for extreme illness and promote
it into the daily bread of convenience." Id. 1 As to the Group
I industries, the Court of Appeals agreed with the District Court
that EPA had a "mandatory, non-discretionary duty" to issue the
rules within one year and the Court of Appeals upheld the
District Court's prescribed remedy: an order with specific
deadlines compelling EPA to complete its non-discretionary duty
within one year after the deadline had been missed. Id. at 697,
704.
1
Accord Alabama Power Co. V. Costle, 636 F. 2d 323, 39
(D.C. Cir. 1979) ; Sierra Club V. Thomas, 658 F. Supp. at 171;
Sierra Club V. Gorsuch, 551 F. Supp. at 787; State V, Gorsuch,
554 F. Supp. at 1064.
6
Finally, in support of its theory that Train provides leeway
for EPA and its assessment of its priorities and capabilities,
EPA relies upon Illinois V. Costle, 12 Env't Rep. Cas. (BNA) 1597
(D.D.C. 1979) and Environmental Defense Fund V. Thomas, 627 F.
Supp. 556 (D.D.C. 1986). EPA Memorandum at 9-10. But, as the
court explaired in Sierra Club V. Thomas, these decisions "mis-
construe[d] Train.
[Train] does not impose a pure good
faith standard
but clearly requires the agency to demon-
strate that it is proceeding with utmost diligence. ""658 F. Supp.
at 171 n.5. Thus, to be afforded any leeway, EPA must
demonstrate that it is "completely unable to fulfill [its]
duties" more expeditiously. State V. Gorsuch, 554 F. Supp. at
1065 n.4.
In sum, the cases cited by EPA do not support its contention
that its remedial schedule is entitled to deference. Rather, as
another district court has concluded in a strikingly similar
case,
"when
a
statute sets forth a bright-line rule for agency
action
('Not later than December 31, 1980
'), there is no
room for debate -- Congress has prescribed a categorical mandate
that deprives EPA of all discretion over the timing of its
work. 111 Natural Resources Defense Council V. United States
Environmental Protection Agency, 1992 WESTLAW 158767 at 2
(E.D.N.Y. July 6, 1992) (Exhibit 9 to Plaintiffs' Opening
Memorandum), quoting merican Lung Ass'n V. Reilly, No. 92-6060,
slip op. at 1.0 (2d Cir. May 4, 1992).
7
II. EPA'S BURDEN IN ESTABLISHING THAT IT CANNOT MEET A MORE
EXPEDITIOUS SCHEDULE IS ESPECIALLY HEAVY
A.
In Framing Equitable Relief, Courts Must Follow Congres-
sional Mandates Unless EPA Demonstrates Infeasibility
In framing a remadial schedule, the court must comply with
Congress' explicit in Structions and objectives, unless EPA meets
its "heavy burden to demonstrate the existence of an impossibili-
ty. " Alabama Power Co. V. Costle, 636 F.2d 323, 359 (D.C. Cir.
1979) 2
Here, Congress explicitly stated that EPA must issue the
National Recycling and Emissions Reduction Program regulations by
January 1, 1992. 42 U.S.C. § 7671 (a) (1). This Congressional
mandate plays a key role in Congress' scheme to reduce emissions
of ozone depleting substances and greenhouse gases to the lowest
achievable level before and during the decades-long phase out in
the manufacture of these substances. 42 U.S.C. § 7671g;
Plaintiffs' Opening Memorandum at 9-11. These man-made
substances have created two distinct but related global environ-
mental crises: stratospheric ozone depletion and global warming.
Plaintiffs' Opening Memorandum at 2-6. Only by drastically
reducing and ultimately eliminating the emissions of these
substances will these crises be averted. Id.
2
Accord Natural Resources Defense Council V. United
States Environmental Protection Agency, 1992 WESTLAW 158767 at 2
(E.D.N.Y. July 6, 1992) (Exhibit 9 to Plaintiffs' Opening
Memorandum) ; Sierra Club V. Thomas, 658 F. Supp. 165, 170 (N.D.
Cal. 1987) ; New York V. Ruckelshaus, 21 Env't Rep. Cas. (BNA)
1721, 1723-24 (D.D.C. 1984) ; State of New York V. Gorsuch, 554 F.
Supp. 1060, 1063-64 (S.D.N.Y. 1983) i Sierra Club V. Gorsuch, 551
F. Supp. 785, 787-88 (N.D. Cal. 1982).
8
Now that Congress' January 1, 1992 deadline for EPA action
has been missed, the Court's order should follow Congress'
mandate as caosely as possible by ordering the most expeditious
compliance schedule feasible. See, e.g., Natural Resources
Defense Council V. United States Environmental Protection Agency,
1992 WESTLAW 158767 at 4 (E.D.N.Y. July 6, 1992) (Exhibit 9 to
Plaintiffs' Opening Memorandum). Plaintiffs' proposed schedule
obviously would require more expeditious promulgation of the
608 (a) (1) regulations. Importantly, this schedule also is
feasible.
1.
EPA Has Not Met Its Burden To Prove Impossibility
EPA has not met its burden to prove that it would be impos-
sible to promulgate the 608 (a) (1) regulations on plaintiffs'
proposed schedule. As outlined in the introduction of this
brief, plaintiffs' proposed schedule is identical to EPA's except
that it limits EPA final review of the regulations after the
notice and comment period to 90 days, as opposed to the 150 days
urged by EPA. EPA's proposed 150 day period for further govern-
mental review after the close of the public comment period
provides a full 90 day period for staff review and then an addi-
tional 60 day period for review of the proposed final regulations
by senior EPA management, other federal agencies, and Admin-
istration staff. Claussen Declaration at 11 23-29.
A single 90 day period for both EPA staff and EPA senior
management review is more than adequate. By way of comparison, a
district count recently limited EPA to a final review period of
9
60 days in a substantially similar case. See Natural Resources
Defense Council V. United States Environmental Protection Agency,
1992 WESTLAW 158767 at 4 (E.D.N.Y. July 6, 1992) (Exhibit 9 to
Plaintiffs' Opening Memorandum).
Moreover, no justification exists for such prolonged final
review under these circumstances. First, although EPA is
obligated to respond to public comment, EPA already has received
and considered extensive public comment on its proposed
rulemaking issued in 1990, Claussen Declaration at I 12, which
should expedite its review of public comments on the draft
regulations. EPA also has consulted with "a wide range of
affected parties, including other EPA offices, associations r-
epresenting air contractors and technicians, environmental groups
and various affected industry groups" and conducted "several
dozen meetings to discuss issues and determine approaches,' id.,
both steps which should have assisted EPA in anticipating and
responding to public comments. See also, id. at 11 13-14.
Finally, EPA has conducted studies "to evaluate the effectiveness
of various regulatory strategies," id. at 15, an additional step
that will allow EPA to quickly and accurately respond to public
comments.
Second, EPA presents no specific reasons why EPA senior
management review of almost-final regulations requires an
additional 60 days and why this review cannot, even in part,
occur concurrently with the staff review. See Environmental De-
fense Fund V. Reilly, 89-0598, slip op. at 2-4 (D.D.C. Feb. 21,
10
1990) (Exhibit 1) (court rejects EPA proposal for 30 day final
review, directing Administrator to sign final Resource Con-
servation and Recovery Act regulations within two weeks of
order). EPA also alludes to further OMB review, stating that
this 60 day period "includes the time necessary for the Ad-
ministration as a whole to review the rule
...
[which has]
widespread regulatory impacts for conformance with general
Administration." Claussen Decl. at I 24. Any additional delay
of the regulations for OMB review is unlawful. See Plaintiffs'
Opening Memorandum at 21-22.
2.
ERA's Excuses Do Not Justify A Lengthy Remedial
Schedule
EPA surgests that the Court should accept its proposed 7 1/2
month schedule because "Congress imposed a massive rulemaking
task on EPA in the 1990 Clean Air Act amendments," and the
608 (a) (1) rulemaking "cannot be accomplished without due
consideration to the competing resource and manpower demands of
these numerous other rulemaking responsibilities." Claussen
Declaration at I 11. 3
EPA's generalized complaint that the Clean Air Act's
accelerated air pollution reduction scheme is too much work does
not justify EPA's proposed 7 1/2 month schedule. It is EPA's
responsibility to seek and allocate resources to meet
Congressional or court-ordered deadlines and failure to do so
3
This statement casts doubt on EPA's later assertion
that "EPA could not effectively speed up its work on this rule by
the commitment of more resources." Claussen Declaration at I 28.
11
does not justify failure to fulfill a statutory duty. See Sun
Enterprises. LTD V. Train, 532 F.2d 280, 290 (2d Cir. 1976) ;
Natural Resources Defense Council V. EPA, 595 F. Supp. 1255, 1270
(S.D.N.Y. 1984). Moreover, "shifting resources in response to
statutory requirements and court orders is commonplace for EPA. "
Sierra Club V. Thomas, 658 F. Supp. at 174.
Althou EPA may be faced with numerous competing demands
and priorit S, EPA simply is not free to adjust Congress'
explicit de line for promulgation of the 608 (a) (1) regulations
in light of ts own view of the priority that these requirements
should take If EPA feels overburdened by the regulatory agency
of the Clea: Air Act, it must seek relief elsewhere: "In the
absence of showing of impossibility, EPA must look to Congress,
not this Co it, for an extension of time. If Sierra Club V.
Thomas, 658 7. Supp. at 175. Accord State V. Gorsuch, 554 F.
Supp. at 10:5; Sierra Club V. Gorsuch, 551 F. Supp. at 1066.
Instead of seeking extensions from Congress, EPA has repre-
sented that it could meet the Clean Air Act deadlines. At a
Congression 1 hearing in May 1991, EPA Assistant Administrator
for Air and Radiation William G. Rosenberg was asked whether EPA
had sufficient personnel resources to meet the Clean Air Act
regulation deadlines during the first two years after CAA
enactment. Mr. Rosenberg stated that he thought EPA did have
sufficient resources. See Excerpts from May 1, 1991
Congressional hearing at 246, 247, Exhibit 2; see also, Natural
Resources Defense Council V. United States Environmental
12
Protection Agency, 1992 WESTLAW 158767 at 3 (E.D.N.Y. July 6,
1992) (Exhibit 9 to Plaintiffs' Opening Memorandum) (rejecting
EPA's argument for a lengthy remedial schedule because of
competing agency priorities, citing Mr. Rosenberg's testimony).
EPA also states, without supporting legal citations, that
"if the Court does not adopt the Agency's proposed schedule, EPA
would be forced to promulgate the refrigerant recycling regula-
ticns without complying with the procedural requirements of the
Administrative Procedure Act and the CAA, making its actions
vulnerable to legal challenge.
"Claussen Declaration at
I 31. No basis for this proposition exists. In fact,
plaintiffs' proposed 5 1/2 month schedule includes exactly the
same amount of time for public comment and hearing as does EPA's,
and as detailed above, other courts repeatedly required EPA
action in similar situations in far less than the 150 days
proposed by EPA.
Finally, EPA sets forth at length the reasons for its past
delay in issuing the draft regulations from May 1990 through
present. See Claussen Declaration at 11 12-19. This long
explanation is not germane to the only issue now before the
Court, which is the determination of the fastest feasible compli-
4
ance schedule for the future.
Moreover, EPA's explanation in no sense justifies its delay.
4
If germane at all, this long history demonstrates that
EPA has had years to develop emissions reduction regulations and
still has failed to issue for public comment even a draft of
these regulations.
13
In the nearly two years from the enactment of the Clean Air Act
to the present, EPA has encountered no exceptional difficulties
in the process of developing the draft regulations other than the
routine bureaucratic rulemaking procedures that Congress was
aware of when it enacted the Act. EPA's own decision, not
required by Congress, to conduct meetings and prepare studies
prior to drafting regulations, Claussen Declaration at 11 13-15,
does not justify failure to meet Congress' deadline because
"[t]he Agency may fulfill its mandate to issue regulations as
well as satisfy its lingering technical and policy concerns by
issuing regulations and later consider revision if the Agency's
understanding and expertise expand. " State of Illinois V. Gors-
uch, 530 F. Supp. 340, 34 (D.D.C. 1981). See also, Sierra Club V.
Thomas, 658 F. Supp. at 174 ("EPA's litany that 'further study
always makes everything better'
has never been persua-
sive."). Finally, there is no conceivable excuse for OMB's
illegal review of the proposed draft regulations, which has now
continued for almost five months. See Plaintiffs' Opening Memo-
randum at 21-22.
B.
EPA's Unnecessarily Lengthy Proposed Schedule Will Adversely
Affect Public Health, The Environment, And Businesses Depen-
dent On The Issuance Of These Regulations
EPA asserts that no undue injury to the public cr the
environment would occur by allowing EPA an additional two months
to promulgate the 608 (a) (1) regulations. EPA Memorandum at 16.
EPA's argument simply is disingenuous.
EPA has conceded that stratospheric ozone depletion and the
14
greenhouse effect are among "the most significant environmental
problems addressed by the CAA. " EPA Memorandum at 16. EPA has
admitted that broad scientific evidence demonstrates that
"depletion of the stratospheric ozone layer will lead to
increased levels of ultraviolet radiation penetrating to the
earth's surface resulting in potential health and environmental
harm, including increased incidence of skin cancer, cataracts,
suppression of the immune system, and damage to crops and aquatic
organisms. " Answer of Defendant Reilly To First Amended
Complaint at V 3. EPA has admitted that scientists now are
reporting ozone loss or Antarctica and Northern America, and that
emissions of man-made substances such as CFCs are responsible for
this loss. Id. at 99 4-5. To then suggest that no harm results
from the agency's failure to promulgate regulations necessary to
control the emissions of CFCs and other ozone-depleting
substances -- especially when none of these substances have been
phased out -- strains all credibility. 5
Moreover, EPA has ignored the substantial adverse impact to
businesses that relied on EPA's statutory obligation to
promulgate the 608 (a) (1) regulations by January 1, 1992, and
still are waiting for these regulations to be proposed. Based on
the statutory mandate of the Clean Air Act, these businesses
5
Where health and the environment is at stake, the Court
should order EPA to proceed with promulgation of the 608 (a) (1)
regulations on expeditious schedule. See Public Citizen Health
Research Group V. Auchter, 702 F.2d 1150, 1157 (D.C. Cir. 1983) ;
Natural Resources Defense Council V. EPA, 595 F. Supp. at 1269-
70.
15
spent millions of dollars and hired hundreds of employees to
construct, market, and sell equipment to capture and recycle CFCs
and other ozone-depleting substances. See Declarations of
Stephen P. Scuderi, Victoria M. Kamm, and Steven R. Sords,
Exhibits 3-5. This equipment is necessary to comply with the
prohibition on venting ozone depleting substances currently in
effect pursuant to section 608 (c) of the Clean Air Act, 42 U.S.C.
§ 7671g(c), and will be necessary to comply with the 608 (a) (1)
regulations whenever they are issued.
EPA delay in promulgating these regulations has created
massive confusion in the air conditioning and refrigeration
industries about which equipment ultimately will satisfy EPA, and
thus few in these industries are willing to invest in recycling
equipment in advance of the final rulemaking. Id. As a
consequence, those businesses that relied on the assumption that
EPA would comply with Congress' mandate to issue the regulations
by January 1, 1992 now are unable to sell their recycling
equipment and are losing millions of dollars a month and laying
off hundreds of employees. Id. From the perspective of these
businesses, the faster the regulations are issued (especially the
earliest next spring so that supplies can be ordered and
equipment can be manufactured and sold prior to the busy summer
air conditioning repair season, id.), the better. Id. For this
reason alone, plaintiffs' proposed March 31, 1993 promulgation
date avoids significant further harm to these businesses and
16
their employees compared to EN 's proposed May 31, 1993
promulgation date.
C.
The Court's Order Should Include Specific, Binding
Compliance Milestones.
EPA's proposed schedule sets forth only "anticipate[d], or
"estimate [d]" milestones. Claussen Declaration at 11 20-25. The
Court should be aware that, unfortunately, EPA in the past has
not proven capable of meeting its own estimated dates for
issuance of the emissions reduction program regulations. See,
e.g., 56 Fed. Reg. 54065 (October 21, 1991) (wherein EPA an-
nounced that final action on the 608 (a) (1) regulations would be
completed in July of 1992) (Exhibit 8 to Plaintiffs' Opening
Brief).
EPA's continued inability to meet its own internal deadlines
for promulgating the 608 (a) (1) regulations, as well as Congress'
mandatory deadline, underscores the need for the Court to enter
plaintiffs' proposed 5 1/2 month compliance schedule, with
specific, binding milestones. 6
CONCLUSION
Plaintiffs respectfully request that the Court grant summary
judgment and accept and enter olaintiffs' proposed 5 1/2 month
schedule for final issuance of the 608 (a) (1) regulations.
Because each further day of EPA delay adversely affects public
health, the environment, and recycling businesses dependent on
6
For these same reasons, should this Court decide to
adopt EPA's proposed schedule, the deadlines should be set forth
in a specific, binding court order to ensure EPA's compliance.
17
the issuance of these regulations, plaintiffs respectfully ask
that the Court expedite consideration of this matter.
Respectfully submitted this 16th day of October, 1992.
Fern Shepard Shyand
SIERRA CLUB LEGAL DEFENSE FUND
1631 Glenarm Place, Suite 300
Denver, CO 80202
(303) 623-9466
Howad I. / It
Howard I. Fox
D.C. Bar No. 322198
SIERRA CLUB LEGAL DEFENSE FUND
1531 P Street, N.W., Suite 200
Washington, D.C. 20005
(202) 667-4500
Attorneys for Plaintiffs Maryland
Environmental Interest Group, Lisa
Satterfield, and Sierra Club
18
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the
foregoing REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT was deposited with the United States mail,
postage prepaid, on this 16th day of October, 1992, addressed to
the following:
Kevin W. McLean
U.S. Environmental Protection Agency
M/C LE-132A
Air & Radiation Division
401 M Street, S.W.
Washington, D.C. 20460
Alice Mattice
U.S. Department of Justice
Environment and Natural Resources
Environmental Defense Section
P.O. Box 23786
Washington, D.C. 20026-3986
David Doniger
NRDC
1350 New York Avenue, NW
Suite 300
Washington, DC 20005
Dontta Rodda
19
Exhibit 1
Environmental Defense Fund V. Reilly, No. 89-0598 (D.D.C.
February 21, 1990)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ENVIRONMENTAL DEFENSE FUND, INC.,
)
)
Plaintiff,
)
)
V.
)
Civil Action No. 89-0598
)
(RCL)
WILLIAM K. REILLY, 02 al.,
)
)
Defendants,
)
)
FILED
v.
)
)
AMERICAN PETROLEUM INSTITUTE,
)
FEE 21 1990
)
Intervencr-Defendant,
)
Clerk. U.S. District Court
)
District of Columbia
and
)
)
EDISON ELECTRIC INSTITUTE, e= 2:-
)
)
Intervenor-Defendants.
)
)
MEMORANDUM AND ORDER
This matter comes before the court on plaintiff's oral motion
for partial summary judgment to require the Administrator c: the
Environmental Protection Agency to immediately issue the agency's
organic toxicity characteristics rule.
The court has reviewed the opposition filed by EPA, the
opposition filed by defendant-intervenors Edison Electric
Institute, es al., and the American Petroleum Institute, as well
as plaintiff's reply and the record herein.
Plaintiff's motion will be substantially granted, for the
reasons set forth herein.
Section 3001 (h) of the Resource Conservation and Recovery Act,
42 U.S.C. 5 6921(h), required EPA to promulgate regulations
"identifying additional characteristics of hazardous waste,
including measures or indicators of toxicity.' M Although it is now
more than 28 months since the deadline established by Congress in
the statute for promulgation of these rules, EPA continues to delay
issuance despite OMB having expedited and completing its review
within & days of its receipt of the rules, rather than the 30 days
allowed by Executive Order 12291. EPA refuses to similarly expedite
its own actions.
EPA argues that the Administrator now wants to conduct his
own personal, final review c: the rulemaking package, and that the
agency needs time to assure that the record is properly assembled.
EPA fails to explain why the new Administrater - who has been in
office a year - could not have conducted his review prior to this
time, or at least simultaneous with the CMB review. EPA totally
fails to explain what they have done to expedite this rule after
failing to meet their own earlier estimates to the court regarding
when the rule would be issued. In June, 1989, Sylvia K. Lowrance,
Director of EPA's Office of Solid Waste, estimated that the final
rule would be issued in November, 1989. She explained that
although it was proposed in June, 1986, it was technical and
complex and there had been four additional comment periods, closing -
in the summer of 1988 - now more than 18 months ago. The new rule
was not propulgated in November, 1989, however, and Ms. Lowrance,
in & Declaration dated January 19, 1990, revised her estimate to
the end of March, 1990. She claimed at that time that the "rule
is currently undergoing final revisions in response to final Agency
review." She expected that following the 30-day period of OMB
raview, her staff would "make any necessary final revisions to the
rulemaking package and transmit the rule to the EPA Administrator
for promulçation."
Now that CMS's speedy review action - notably in sharp contrast
== EPA's action - has removed 25 days from that schedule, EPA still
wants the additional 26 days. EPA has now filed a declaration c:
Don 3. Clay, Assistant Administrater for EPA's Cffice c: Solid
Waste and Emergency Response, dated February 14, 1990 (the day
after CMB concluded its review), claiming the agency still needs
the same amount of time - to the end of March, 1990 - "to assemble
the lengthy administrative record for this rulemaking and provide
the Administrator with a final briefing. 11 The court cannot accept
this conclusory statement, and EPA has offered no factual support
for it. The court will shorten EPA's schedule by 26 days, to March
5, 1990.
The court accepts the government's statements that OMS has
completed its review, and the issue of OMB review of other
regulations in this case will have to await another occasion. The
continuing delay as to this rule - as it has been for the last 38
months - is sclely the responsibility of EPA.
EPA did not aven attempt to have the Administrator look at the
final rule simultaneously with OMB, as it has done in other cases
where promulgation of the rule was months or years past a statutory
deadline. See, e.c., E.D.F. V. Thomas, 627 F. supp. 566 (D.D.C.
1986).
Plaintiff and EPA both agreed at the court's hearing on the
defendants' pending motions that the court must now determine
whether the agency has proposed a reasonable schedule CC bring
itself into compliance with the statutory deadline. EPA has failed
== demonstrate that the schedule it has proposed as to its toxicity
characteristio rule is reasonable. The court will, however, allow
EPA until March 5, 1990, to complete its work and brief its
Administrator.
Accordingly, it is hereby
ORDERED that plaintiff's oral motion for partial summary judgment
as to EPA'S promulgation of the toxicity characteristio rule is
GRANTED, and it is further
ORDERED that EPA shall promulgate the toxicity characteristic
rule in accordance with Section 3001 (h) of the Resource Conservation
Recovery Act, 42 U.S.C. § 6921 (b), no later than March 5, 1990.
SO ORDERED.
Rayce C.
ROYCE C. LAMBERCH
United States District Judge
DATE:
Exhibit 2
CLEAN AIR ACT IMPLEMENTATION
(Part 1)
C.C.7
W
-
C 6
6
HEARINGS
( C 4
REFORE THE
&
6
SUBCOMMITTEE ON
1 C.S
C "
HEALTH AND THE ENVIRONMENT
OF THE
COMMITTEE ON
ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SECOND CONGRESS
FIRST SESSION
MARCH 21, 1991-INCINERATORS AND PARK PROTECTION
MAY 1, 1991-PERMITS
JULY 22, 1991-WEPCO RULE
Serial No. 102-55
Printed for the use of the Committee OD Energy and Commerce
creer
1
8
8
4
6
1
$
4
4
200
the administration and the Senate,
pass what I think is a pretty good
mitor carefully what you are doing to
the issues today because we think
wrong direction. We are certainly
with EPA's actions from outside
CLEAN AIR ACT IMPLEMENTATION
Council on Competitiveness. We do
at are going to make it impossible to
imental protection we all thought we
Permits
ted the 1990 Clean Air Act amend-
We will look closely with you. We
WEDNESDAY. MAY 1, 1991
probably. will have other hearings on
Air Act.
House OF REPRESENTATIVES.
Mr. Chairman.
COMMITTEE ON ENERGY AND COMMERCE,
SUBCOMMITTEE ON HEALTH AND THE ENVIRONMENT.
for today. We stand adjourned.
Washington, D.C.
ttee adjourned, to reconvene at the
The subcommittee met, pursuant to notice, at 10:05 a.m., in room
2123, Rayburn House Office Building, Hon. Henry A. Waxman
(chairman) presiding.
Mr. WAXMAN. The meeting of the subcommittee will come to
order.
1 would like to welcome everyone to the subcommittee's second
hearing on the implementation of the Clean Air Act of 1990.
Last November, President Bush signed the Clean Air Act
Amendments of 1990, capping more than a decade of debate. Al-
though the law is far stronger than the administration's initial pro-
posal, the President endorsed the measure and enjoyed consider-
able credit for doing 80. The Clean Air Act remains the administra-
tion's single-most important domestic policy success.
Now, however, that achievement is being tarnished. There is un-
mistakable evidence that the White House officials, spearheaded by
Vice President Dan Quayle, who heads a White House creation,
called the Council on Competitiveness, are working with industry
to undermine the implementation of the new clean air law. This is
particularly true with regard to the new permit proposal that EPA
released last week.
The permit program is supposed to be the cornerstone of the
effort to regulate chemical plants, oil refineries and other station-
ary sources. Unfortunately, changes advocated by the Vice Presi-
dent create such a huge loophole for polluters that it will actually
be more difficult to enforce the Clean Air Act under the new pro-
posal than it is today under the old law.
The subcommittee is today releasing an April 6 memo from the
Office of the Vice President demonstrating how he has sabotaged
the most important rulemaking to date under the new Clean Air
Act. This memo includes the comments on EPA's original proposal
which was forwarded to the agency as part of the Vice President's
regulatory review process for the proposed permit rule.
More than 100 changes are listed by the Vice President's Council
on Competitiveness on the draft by EPA, none which serve to
strengthen the permit program, and almost all would weaken it,
(201)
248
that the Executive of this Nation is doing what he was elected to
ticular regulation did come out on time.
do, that he is seeing that our administration speaks with one voice
good.-We just got into it.
and I want to hope and encourage you to keep going the way you
Mr. DINGELL Will you provide the C
are going and not be bullied into doing something that you don't
standings you have between yourself an
think is proper by people on this committee or other Members of
Congress. Thank you.
please? manner in which these actions are going
Thank you, Mr. Chairman.
Mr. ROSENBERG. Certainly,
Mr. WAXMAN. Thank you, Mr. Lent.
Mr. DINGELL Now, having said that,
Mr. Dingell.
tion yes or no? Do you have the person
Mr. DINGELL Thank you, Mr. Chairman.
other things that you need to complete
Mr. Rosenberg, during the next 2 years, EPA has to issue a
prescribed time limit?
number of guidances to the States, a number of standards, a
Mr. ROSENBERG. I think we have the
number of regulations and rules, which are essentially the same
have the schedule and I can't predict tha
thing, and you have to deal with a large number of State actions.
think we have a plan that allows us to
Approximately how many of each must you do during that period
mistic that we will.
of 2 years?
Mr. DINGELL Now, Mr. Rosenberg, I
Mr. ROSENBERG. To implement the Clean Air Act, about 55 regu-
mate that there will be some 34,000 per
lations and some 20 guidances, and then, of course, there will be
the basis of that application-of that esti
specific interpretations that staff has to review of a number that I
these permit applications come?
couldn't estimate, but in terms of major regulations and guidances,
Mr. ROSENBERG. Our OAQPS Office do'
about 70 or so.
mate, consulting with the regions of the
Mr. DINGELL. Now, you will have to du a large number of rule-
that would be subject to this regulation.
rather, State action approvals. You will have to approve a large
said in the first 5 years, minor sources-l
number of State actions under the Clean Air Act.
sources did not have to obtain permits
Mr. ROSENBERG. To the extent they submit things under those
taken it into the several hundred thousar
regulations for our approval, we would have to determine if they
It is our best guess of what would be
met those requirements. Most of those, I think, would be beyond
submit rules-permits under the acid rai
the 2-year deadline, Mr. Chairman.
or title III and we did a survey around ou
Mr. DINGELL. You also will have to approve a number of SIP's
that estimate would be.
will you not?
Those people who are major sources we
Mr. ROSENBERG. The SIP-we will, and of course, that will also
tions to the States after the States secu
pick up in terms of how much we have to do as we issue these reg.
State operating permit program. In the
ulations.
not submit an approvable program, then
Mr. DINCELL. Do you have sufficient personnel resources to meet
ceivably could be-some of those sources
the deadlines on these regulations and see to it that they are com-
cations to EPA, although in our budget,
pleted in a timely fashion?
States will meet their requirements and
Mr. ROSENBERG. I think we do for the first 2 years. I can't speak
do that.
beyond that. We have received approximately 8 46 percent increase
Mr. DINGELL What is the basis for the
in-from our 1990 levels for 1991 and 1992, 70 percent of all the
some thousand?
increases for operating funds that went to EPA were dedicated to
Mr. ROSENBERG. I will have to submit
the air program and we are hiring people as fast as we actually
our professional staff in North Carolin
mate.
can.
Mr. DINGELL. Now, you have said that. Can you meet your dead.
Mr. DINGELL. Could there be more or C
lines?
Mr. ROSENBERO. I am sure it is not exe
Mr. ROSENBERG. If we can get these rules out and commented
you the basis for it.
upon, we have, as you know, a 2-year, month-by-month schedule.
Mr. DINGELL You have discussed toda
What was very important to us was to meet this particular dead.
jor sources. What is the legal authority f
line because it was 50 controversial and we needed to have the
Mr. ROSENBERO. Can I ask our counsel
public input during the proposal process. Mr. MacRae, who man-
Mr. DINGELL You may.
ages the gate, if you will, on whether we can issue these and EPA
Mr. ELLIOTT. There is a provision in
have worked out a procedure that we hope we can live with that
defer permitting if we find that it is in
gives adequate review to the executive branch under Executive
necessarily burdensome for categories
Order 12291, and 80 far, we are meeting most of the deadlines. We
exempt any major source from such re
are having a little startup problem, but I am pleased that this par
tion 502(a).
246
247
this Nation is doing what he was elected to
xular regulation did come out on time. So I would say, 60 far, 80
hat our administration speaks with one voice
god. We just got into it.
id encourage you to keep going the way you
Mr. DINGELL Will you provide the committee with the under-
bullied into doing something that you don't
endings you have between yourself and OMB with regard to the
ople on this committee or other Members of
canner in which these actions are going to be approved by OMB,
lease?
irman.
Mr. ROSENSERG. Certainly,
you, Mr. Lent.
Mr. DINGELL Now, having said that, is the answer to the ques-
on yes or no? Do you have the personnel. the authority and the
you, Mr. Chairman.
sher things that you need to complete these actions within the
ing the next 2 years, EPA has to issue
1
rescribed time limit?
to the States, a number of standards, s
Mr. ROSENBERG. I think we have the personnel and I think we
and rules, which are essentially the same
yre the schedule and I can't predict that we will meet them, but I
deal with a large number of State actions
think we have a plan that allows us to meet them and I am opti-
any of each must you do during that period
sistic that we will.
Mr. DINGELL Now, Mr. Rosenberg, I understand that you esti-
implement the Clean Air Act, about 55 regu.
sate that there will be some 84,000 permit applications. What is
sidances, and then, of course, there will be
the basis of that application-of that estimate, and from whom will
that staff has to review of a number that I
these permit applications come?
n terms of major regulations and guidances,
Mr. ROSENBERG. Our OAQPS Office down in Durham did an esti-
mate, consulting with the regions of the number of major sources
ou will have to do a large number of rule-
that would be subject to this regulation. I might point out that we
provals. You will have to approve 8 large
aid in the first 5 years, minor sources-things that were not major
under the Clean Air Act.
purces did not have to obtain permits because that would have
the extent they submit things under those
uken it into the several hundred thousand range potentially.
roval, we would have to determine if they
It is our best guess of what would be those people who have to
3. Chairman. Most of those, I think, would be beyond
abmit rules-permits under the acid rain title or under the title I
x title III and we did a survey around our regions to find out what
to will have to approve a number of SIP's,
that estimate would be.
Those people who are major sources would be submitting applica-
SIP-we will, and of course, that will also
tions to the States after the States secure EPA's approval on the
much we have to do as we issue these reg-
State operating permit program. In the event that the States do
not submit an approvable program, then some of those States con-
have sufficient personnel resources to meet
rivably could be-some of those sources could be submitting appli-
regulations and see to it that they are com-
estions to EPA, although in our budget, we are assuming that the
n?
States will meet their requirements and we will not be having to
ik we do for the first 2 years. I can't speak
do that.
ceived approximately a 46 percent increase
Mr. DINGELL What is the basis for the estimate of 34,000 or 250-
is for 1991 and 1992, 70 percent of all the
ome thousand?
funds that went to EPA were dedicated to
Mr. ROSENBERG. I will have to submit that for the record. It was
e are hiring people as fast as we actually
our professional staff in North Carolina that provided that esti-
nate.
u have said that. Can you meet your dead.
Mr. DINGELL Could there be more or could there be less?
Mr. ROSENBERG. I am sure it is not exactly precise, but I will give
can get these rules out and commented
you the basis for it.
know, a 2year, month-by-month schedule.
Mr. DINGELL You have discussed today the exempting of nonma-
nt to us was to meet this particular dead-
or sources. What is the legal authority for that action by EPA?
controversial and we needed to have the
Mr. ROSENBERG. Can I ask our counsel to answer that?
proposal process. Mr. MacRae, who man-
Mr. DINGELL You may.
1, on whether we can issue these and EPA
Mr. ELLIOTT. There is a provision in title V that allows us to
edure that we hope we can live with that
defer permitting if we find that it is impractical, infeasible or un-
to the executive branch under Executive
necessarily burdensome for categories except that we may not
we are meeting most of the deadlines. We
exempt any major source from such requirements. That is in sec-
ip problem, but I am pleased that this par-
tion 502(a).
266
267
8 the burden of a complete applica-
A year and a half ago, EPA submitted a rule to you that would
ority?
have cut emissions from facilities dramatically by more than 2 mil-
an application that is incomplete
lion tons per year, yet despite the long-overdue statutory deadline,
ete. I do think that we
the statute was specific, despite the enormous benefits of the agen-
the authority-
cy's proposal, despite the deaths and the smog, OMB has refused to
n establish
process this regulation.
In the statute to support section
Death by delay is 8 terrible fate. I want your assurance that this
will not happen to the permit rule or any other rules under the
18 general authority of an agency to
new Clean Air Act. Will you commit to us that OMB will not hold
t create presumptions after a period
any regulations past their due date under the new Clean Air Act?
ically a statute of limitations.
Mr. MACRAE. Absolutely.
saying is that if there is an ambigui-
Mr. SIXORSKI. And you agree with that, Mr. Rosenberg?
benefit polluters under these regula-
Mr. ROSENBERO. Yes, and I might point out that this rule has not
biguity-don't wink and blink-this
been delayed.
Mr. SIKORSKI. No, we are just-listen, we have tried kicking the
that was exactly what I was saying,
football that you, as Lucy, have held for several times over the
course of the years, and I just want to make sure that we are not
:ut then if there isn't-if there isn't
beating our rear end down and the OMB picking up the football or
S specific, the twist is going to occur
someone else picking up the football.
kind of general grant of authority in
Mr. ROSENBERG. Part of the advantage for our having the consul-
tations with the White House on a broad basis, which we are doing,
18 given us, in section 502(b), about a
is that I think that we mutually share the schedule for the Clean
1 guidance as to what the character
Air Act, which, of course, was proposed by the President, and we
Then they have, in addition to that,
have previously furnished to the committee, our month-by-month
of creating a much larger set of ad-
schedule for the next 2 years that we are working diligently to
a permit program. What we have
achieve, with the cooperation from the White House.
88 pages is to put flesh on the bare
Mr. SIKORSKI. You just understand that paranoia doesn't mean
that people aren't delaying?
num requirements that Congress set
Mr. WAXMAN. Will the gentleman yield to me?
ur understanding that that was in-
Mr. SIKORSKI. Yes.
Mr. WAXMAN. Mr. Rosenberg, you have this cooperative arrange-
lear here that what has happened is
ment, but you also have some other arrangement within EPA
very tortuous compromises that the
where you said you want to have a process where you work with
involved in, came up with a good
industry and business as well as others affected by the law to reach
veryone posed for the holy pictures
consensus decisions and that is obviously a laudable objective, but
3 releases, and the rest of it on it,
why would industry-if industry can go to Vice President Quayle's
air.
Office to seek major weakening changes, even ones that are, I
process of putting the guts to it, the
think, in clear violation of the law, then why would they ever want
regulations, made proposals that
to participate in good faith with EPA in any negotiated rulemaking
d to the benefit of the industry and
efforts where they would have to settle for half a loaf?
he public health of the citizens of
Mr. ROSENBERG. 1 think that the industry position on this par-
ed on ambiguities that aren't there
ticular issues was not-
hority that somehow can overcome
Mr. WAXMAN. I am not asking about any particular issue
Mr. ROSENBERG [continuing]. Adopted by either the White House
e's favorite weapon is delay, if not
or EPA. I mean, industry is concerned about the clarification of
rant of-informal grant of author-
these issues in many cases as well. They are concerned about being
rule, you don't have to kill it offi-
sued by environmentalists; they are concerned about how the
ely.
States are
RCRA, the Resource Conservation
Mr. WAXMAN. They are being taken care of, as we have seen, be-
issue regulations controlling emis-
cause they get a shield from lawsuits under this permit change if
lities by May 1987. These facilities
they simply notify in 7 days and the State doesn't open its mail in
source of smog-causing VOC's in
time, they can just amend their permit and never have to be sued.
ns kill more than 100 people each
That is a shield from a lawsuit. But I am not talking about that
specific one; I am talking about this process. You have lauded to us
Exhibit 3
THERMA-FLO
Recycling to make a world of difference
DECLARATION IN SUPPORT
OF MOTION FOR SUMMARY
JUDGEMENT
CIVIL ACTION NO.
92-1225 (SS)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
DECLARATION OF STEPHEN P. SCUDERI
Stephen P. Scuderi under penalty of perjury, affirms and
declares that the following statements are true and correct
to the best of his knowledge and belief, and are based on his
own personal knowledge or on information contained in the
records of AMERICAN THERMAFLO CORPORATION or supplied to him
by employees under his supervision at AMERICAN THERMAFLO
CORPORATION.
My name is Stephen P. Scuderi, I am Vice President of
AMERICAN THERMAFLO CORPORATION (THERMAFLO) IN Springfield,
Ma.
Thermaflo is a leading manufacturer of refrigerant
recovery equipment in the United States producing more than
30,000 recovery machines in 1992. Thermaflo is a very active
member of the Air Conditioning Refrigeration Institute (ARI),
having delegates on the ARI-700 and ARI-740 committees, as
well as the ARI committee to certify off site refrigerant
reclaimers. I personally am a member of the Stratospheric
Ozone Protection Advisory Council, an ARI-740 committee
member, and an ISO delegate for technical committee 86 which
is preparing an ISO standard to rate recovery recycling
machinery internationally.
I would like to make it clear from the start that I
believe the people at the EPA have done an excellent job in
the content of the regulations they have proposed to OMB.
Their people have researched the problem and designed a set
of regulations that have been embraced, for the most part, by
our industry. And their ongoing correspondence with our
industry has always been responsive, fair and diligent.
The problem is they are late. Very late. Not from a
lack of effort, but, I believe, from a lack of reaources.
And that, unfortunately has caused problems for many
companies investing in this area.
Our company was typical of several amall companies that
viewed this as an area of green technology that we could
invest in to help colve a problem of global significance.
THERMAFT is 2 division of AMERICAN THERMAFLO CORPORATION
3640
Main
Street
Springfield,
Massachusetts
01107
1-800-8484-CEC
THERMAFLO
We developed the recovery/recycling equipment necessary
for our industry to meet the requirements of the Clean Air
Act and the Montreal Protocol. When the demand for this
equipment skyrocketed, we hired the people.
In Springfield, Ma., Thermaflo hired more than 200
people, and created more than 500 jobs when you consider all
of our subcontractors. Our production capacity rose to meet
the demand, and we were receiving inquires form all over the
world about our product. The possibility of exporting this
green technology was excellent.
Unfortunately, the EPA was 80 for behind in promulgating
its regulations that it was having trouble effectively
enforcing the law. This became apparent shortly after July
1, of this year.
As a result some contractors perceived the law, however
incorrect they may be, as a paper -tiger. Some continued to
vent refrigerants. This created an unlevel playing field in
which the contractors who were trying to adhere to the law
had to compete against the ones who were illegally venting.
Therefore, the demand for this equipment dried up, and we had
to lay our people off.
In Thermaflo almost all 200 employees have been laid
off. We expected some attrition since this a cyclic industry
tied to our cooling season (perhaps 25%), but the sudden and
drastic drop in demand for the product can only be
attributable to the lack of enforcement of the law.
I do not wish to advocate a witch hunt against our
ultimate customers, the contractors. If violators are caught
venting they must be given their constitutional right of due
process. Alao consideration must be given to the fact that
industry was having trouble supplying the units in time to
meet the demand.
But the law is a good one, and it must be made clear to
everyone that it will be enforced. The longer it takes the
EPA to finalize its regulations, the harder this will be.
Pursuant to 28 U.S.C. section 1746, I declare under
panalty of perjury that the foregoing is true and correct to
the best of my knowledge and belief.
Executed this 16th day of October, 1992, at American
Thermaflo Corporation in Springfield, MA.
Stephen P.Scuderi
STEPHEN P. SCUDERI
Exhibit 4
E' 'herma
ENGINEERING COMPANY
DIVISION OF SEAKAY CO.
DECLARATION OF VICTORIA M. KAMM
Victoria M. Kamm, under penalty of perjury, affirms and
declares that the following statements are true and correct
to the best of her knowledge and belief, and are based on her
personal knowledge or on information contained in the records
of Thermal Engineering Co., Inc., div. of Seakay Company ()r
supplied to her by employees and/or representatives of
Thermal Engineering Co.
1. My name is Victoria M. Kamm. I am the National Sales
Manager of Thermal Engineering Co., Inc. This company
manufactures, among other things, refrigerant recovery and
recycling equipment.
2. I have been the national sales manager for approximately
eight years. I supervise fourteen manufacturer repre-
sentative organizations, an export agency and direct
staff. I am extremely active in industry associations and
technical committees. Through these contacts I have
gained expertise and national recognition on refrigerant
recovery and recycling Issues.
I am a certified proctor for both the Refrigeration Serv-
ice Engineers Society and Air Conditioning Contractors of
America refrigerant handling training and certification
programs. I have technical knowledge on the actual recov-
er and recycle processes as well as how the current laws
and proposed rules will probably affect my customers'
businesses.
3. This declaration is filed in support of the plaintiffs'
motion for summary judgement.
BACKGROUND
Thermal Engineering Co., Inc. (the company) is a thirty year
old manufacturing facility located in Toledo, Ohio. Since
its beginning, it has produced and distributed refrigeration
and air conditioning service tools and instruments through
approximately eight hundred wholesale outlets. The company
currently has fourteen sales representative organizations in
the United States. These reps provide information, technical
support and so on since it is physically impossible for the
company to do so. The rep organizations are independent and
carry several other, usually non-competing lines (of
products). The reps are paid on 3 commlssion-only basls with
2022 ADAMS STREET TOLEDO, OHIO, USA 43624 419-244-7781 TELEX 286438 THERMAL TOL FAX: 419-244-1878
'herma
ENGINEERING COMPANY
DIVISION OF SEAKAY CO.
a set percentage of the wholesale invoice. Our export agent
is a contract relationship and deals only with non-domestic
customers. What happens to the company directly affects our
export agent. However, the Environmental Protection Agency
(EPA) rules do not. Other than background, then, the export
agent will not be considered for this declaration.
Approximately four years ago, the company produced a refrig-
erant recovery/recycle machine for exhibition at an industry
trade show. There were no plans for even small scale produc-
tion since we felt the market was not ready. We were aware
of the International discussions of the potential for ozone
depletion and the distinct possibility that refrigerant re-
covery may be required at some point. However, WC surmised
that to be at least flve years Into the future and probably
ten.
Early in 1989, surprised and encouraged by market response to
our machine, we purchased enough inventory for a small pro-
duction run of fifty units. We sold all of them before they
were actually produced and the machine became an integral
part of our product offering. By the end of 1989 the company
had sold approximately 663 machines.
The next year was a turning point for the company. The Clean
Air Act Amendments of 1990 (CAA) had been written, passed
Into law and signed by the President. Now a guideline had
been established regarding minimum requirements, rule and
regulation proposals and implementation schedules and
enforcement. The "crystal ball" forecasting was no longer
necessary.
We added new products to our line. We were aware that the
CAA required only recovery although published comments by EPA
certainly promoted the concept, in fact the necessity, of re-
cycling as well. Due to my avid interest in the legislative
aspects of the CAA, [ travelled extensively speaking to in-
dustry groups particularly the service technicians who would
be most affected by the laws. The sales reps were doing the
same type of presentation.
Equipment certification was not specifically mentioned in the
CAA. Once again, through advisory committees established by
EPA and efforts of other industry groups, it became clear
that proposed regulations would include minimum machine stan-
dards. We did not expect to know what these minimum
standards would be until the rules promulgation of January 1,
1992. Market forces only would produce sales of approximate-
ly 1200 machines by the end of 1990.
2022 ADAMS STREET TOLEDO, OHIO, USA 13624 419-244-7781 TELEX 236438 THERMAL TOI. FAX: 419-244-1878
P
'hermal=
ENGINEERING COMPANY
DIVISION OF SEAKAY CO.
The company's focus in 1991 was technician certification and
training as well as research and development. We planned to
expand our production facilities in 1992. We had a wide
array of new products and services to introduce 10 the market
but WC: wanted 10 wait until the January 1, 1992 rules
promulgation to commit ourselves entircly. We continued our
plans and began taking orders in November for 1992 shipment.
Wc were forced 10 offer our customers a guarantee of compli-
ance with EPA regulations even though we realized they would
not even be proposed by January 1, 1992. Our total sales for
1991 were approximately 3380 units.
Between November 15, 1991 and December 15, 1991, the company
received orders for approximately 15,000 units 10 be delivered
before July 1, 1992. The wholesalers were preparing for an
unprecedented number of orders based solely on the July 1,
1992 no-venting deadline. Most of the company's customers
wished 10 take delivery after March. The conventional wisdom
was the industry would have proposed rules by then and we
could sort out any potential compliance problems.
The company went on a massive expansion program. A 35,000
square foot facility was leased and approximately eighty ad-
ditional employees were hired. All ncw employees were given a
four week training and probationary period since they were
hired primarily from the central city and through Toledo's
Private Industry Council.
Many new refrigerant recovery/recycle manufacturers were es-
tablished H1 the end of 1991 and into 1992. The demand for
machines was estimated at approximately 500,000. There was
absolutely 110 way that the demand could be met. Production
was estimated at approximately 125,000 10 150,000 units. It
was evident that any single company's sales were strictly a
function of its production capabilities. Certainly, there
were better sellers than others but there was more than
enough room for all manufacturers assuming they would be able
10 meet the grandfathering criteria for certification. The
next two 10 three years would possibly be as busy as 1992 was
projected 10 be.
Thermal Engineering Co. had a production forecast of approx-
imately 12,000 to 15,000 units. We expected cancellations of
orders as July 1 goi closer because we could not produce them
fast enough and we had more and more competitors. We encour-
aged a lot of our customers to buy machines wherever they
could. A1 one point, we had about 20,000 units on backorder
and did not Ret the cancellations we expected. Our customer
service staff, sales representatives, production employees,
etc. were under fire for about six months straight.
2022 ADAMS STREET TOLEDO, OHIO, USA 43624 419-244-7781 TELEX 286438 THERMAL TOL FAX: 419-244-1878
E' 'herma
ENGINEERING COMPANY
DIVISION OF SEAKAY CO.
of course, rapid growth is part of being in business (hope-
fully) and the consequences are generally known. The reasons
for participating in this declaration have nothing to do with
business events occurring before July 1, 1992 except as a
frame of reference.
REASONS FOR SUPPORT OF SUMMARY JUDGEMENT
There are three specific requirements of the CAA. First is
that rules by promulgated by January 1, 1992. The second is
these rules must be in place by July 1. 1992. Third, the CAA
provides enforcement for any violation of the venting prohi-
bition as of July 1, 1992.
As of the date of this declaration, none of these three re-
quirements have been fulfilled. The promulgation of the
rules is approximately ten and one-half months overdue. I am
aware F.P.A has submitted a sel of proposed rules and regula-
tlons 10 the Office of Management and Budget (OMH). Portions
of these proposed rules were not found acceptable by OMB and
were returned to EPA for revision. Once again, as of this
date there is 110 scheduled release.
It follows, then, that once the proposed rules are published
and after the obligatory and necessary public comment period,
there will be revision and review by OMB and EPA. Unfortun-
ately. since the required dates have already passed I am
quite concerned that an aggressive implementation schedule
will not be considered important.
These are generalizations. Let me be very specific about the
affect of EPA's failure to get rules promulgated, published
and enforced.
1. On or about July 16, 1992 the company starting receiving
the cancellations we had expected. Within approximately
ten days, 6,000 machines were cancelled. Not only did we
receive cancellations, all our competitors did as wcll.
The bottom literally dropped out of the market. Wc called
our customers, our sales reps, our competitors. The an-
swer 10 this phenomenon was the direct result of the lack
of enforcement by EPA. Literally no one would be punished
for fallure to comply with the no-venting prohibition.
For what possible reason, In a lackluster economy, was
there to Invest in refrigerant recovery equipment If the
law was a "paper tiger"?
2. Our entire production on order was stopped by August 1,
2022 ADAMS STREET TOLEDO, OHIO, USA 43624 419-244-7781 TELEX 286438 THERMAL TOL FAX: 419-244-1878
E' 'herma
ENGINEERING COMPANY
DIVISION OF SEAKAY CO.
1992. Hoping for an announcement by EPA that venting
violators would be aggressively pursued and prosecuted as
provided by the СЛА, we continued to build stock. On
August 7, 1992 however we were forced to begin layoffs.
As of October 2, 1992 sixty-four employees have filed for
unemployment benefits. The company expects to continue to
layoff if WC do not get some direction soon. Our costs
for unemployment coverage will increase.
3. Our building is underutilized yet we still must make
our fixed cost payments. This building should have been
fully utilized for at least two years.
4. We are holding inventory for machines that are no longer
on order. Seven of the company's top suppliers are wil-
ling to issue credit for returned merchandise with re-
stocking fees ranging from 15 to 60%. We will have to
take those losses directly out of our profit.
5. Since there are no proposed rules much less published
rules, the company is extremely uncomfortable with making
any decision to build production for next year. Our sup-
pliers are not interested in selling large quantities as
they do not want to be put in the same position next year.
6. Our customers are totally unwilling to bily equipment.
Even if EPA does begin to enforce the venting prohibition,
there are no definite guidelines on what machine minimum
standards will be. It is a gamble no one is willing to
take.
7. Hecause we were willing to guarantee our machines compli-
ance with possible EPA requirements, some of our customers
used that as a means of returning machines to us. "You
promised we would not get stuck with your machines." Of
course, I could not have known it would have nothing 10 do
with Thermal Engineering. We have had to put back into
inventory almost $580,000 worth of machines back into our
stock. We are trying to delay returns of another $150,000
from others.
8. Our sales reps have taken losses as well. Whenever we
have issued credit, the rep receives a credit as well.
Our reps have lost approximately $52,000 since the middle
of July. They are not interested in promoting machines
until they are sure the customers really need them.
Quite honestly, the company can and will survive this. How-
ever, we will be exception rather than the rule particularly
2022 ADAMS STREET TOLEDO, OHIO, USA 43624 419-244-778 TELEX 286438 THERMAL TOL FAX: 419-244-1878
-Therma
ENGINEERING COMPANY
DIVISION OF SEAKAY CO.
if the rules promulgation takes until the middle of next year
as has been rumored. First, we will not build units until we
are positive they will be in compliance. Second, any compet-
dtors that drop out because of the excessive burden of wait-
ing will lower the supply to the service techniclan. Third,
costs will increase simply because of the first two.
The cost to the general public is great. The consumer feels
the САЛ protects the environment by putting into place all
the necessary controls. The cost to the customer in real
dollars will be high if current refrigerants are not recov-
ered and they are forced to use far more expensive alternate
refrigerants. The loss of direct jobs of course is a cost to
society as well.
Regulating industries is certainly not a simple task. This
industry built machines willingly allowing market forces to
support the law. We now need the support of EPA to shape the
market. Simply put, give us the rules and regulations to
make that happen.
Pursuant to 28 U.S.C. C. section 1746, I declare under penalty
of perjury that the foregoing is true and correct to the best
of my knowledge and belief.
Executed this 16th day of October, 1992 at Toledo, Ohio.
Victoria Ink.Kamm
Kamm
Victoria M. Kamm
2022 ADAMS STREET TOLEDO, OHIO, USA 43624 419-244-7781 TELEX 286438 THERMAL TOL FAX: 419-244-1878
Exhibit 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARYLAND ENVIRONMENTAL INTEREST
)
DECLARATION IN
GROUP, et.al.
)
OPPOSITION TO
)
MOTION FOR
)
SUMMARY JUDGMENT
Plaintiffs,
)
)
V.
)
)
Civil Action No.
WILLIAM K. REILLY, in his
)
92-1225 (SS)
official capacity
)
as Administrator of the
)
United States Environmental
)
Protection Agency,
)
)
Defendant.
)
)
DECLARATION OF STEVEN R. SORDS
Steven R. Sords under penalty of perjury affirms and declares that
the following statements are true and correct to the best of his
knowledge and belief, and are based on his own personal knowledge
and information concerning the industry in which he participates
i.e., the manufacturing of CFC recovery and recycling equipment.
1. My name is Steven R. Sords. I am the Chief Executive
Officer of Recycling Specialists International (R.S.I.)
of Cleveland, Ohio. My company which has been incorporated for
approximately a year and a half was set up specifically to react
to the mandatory legislation for which the Environmental Protection
Agency (EPA) was responsible to publish and enforce.
2. I have been Chief Executive Officer of the R.S.I. Company
for approximately one (1) year and during that time I have
witnessed the growth of R.S.I. Company from six (6) people to over
seventy (70) people at our peak in August 1992. Since August,
there has been a massive turn down in the industry due to lack of
compliance by contractors in the Air Conditioning Industry due to
the fact that the EPA has failed to do its' non-discretionary duty
of publishing laws concerning the venting of refrigerant by January
1 of 1992 and enforcing said laws by July 1, 1992. This massive
turn down has cost R.S.I. Company in the order of three (3) million
dollars monthly since our sales went to virtually zero (0) after
August 1992, and a manpower cost in lost jobs of over forty (40)
people. R.S.I. Company reacted to the imminent EPA legislation to
produce high quality recovery and recycling equipment for the
industry. Because of the massive turn down in business due to lack
of compliance since the EPA has not published or enforced
their laws which was their discretionary duty, we like many
recovery and recycling manufacturers are struggling to survive.
I like many of my peers in this industry wonder whether there will
be any manufacturers left to produce and supply equipment once the
EPA begins to carry-out their enforcement duties.
3. This declaration is filed in support of the plaintiffs
motion for summary judgment.
4. Section 608 of the Clean Air Act as amended in 1990
requires the EPA to promulgate regulations to reduce the use and
emissions of ozone depleting substances used as refrigerants. I
declare under penalty of perjury that the foregoing is true and
correct to the best of my knowledge and belief.
Executed this 16th day of October, 1992, at Cleveland Ohio.
Have STEVEN R. R. SORDS Sords