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US: Southern Co. Hires Clean Air Act Regulator

by Margaret MewkirkAtlanta Journal-Constitution
September 4th, 2003

Southern Co. hired a new congressional lobbyist this week, and a Washington-based environmental group is crying foul.

The lobbyist is John Pemberton, chief of staff of the division of the federal Environmental Protection Agency that delivered a key Clean Air Act victory last week to the nation's coal-fired utility industry, led by Southern Co.

The company confirmed Wednesday that Pemberton, who has been right-hand man to the head of the EPA's air regulation division, was hired as a senior executive in charge of federal lobbying.

When the Natural Resources Defense Council learned of Pemberton's new job, the environmental advocacy group circulated a statement that charged that EPA officials "take dictation from major polluters and then brazenly cash in."

The statement claimed the industry "bought and paid for" the change in how the EPA enforces the Clean Air Act and that it was "fitting that one of the nation's biggest polluters should reward this EPA official by putting him on its payroll."

Southern Co. spokeswoman Tiffany Gilstrap said the company decided to hire Pemberton several weeks ago, and that Pemberton withdrew from involvement in decisions involving Southern Co. at that time. The company hired Pemberton to fill an existing position that has been "vacant for several months," she said. "It's not a new position."

Gilstrap said the company decided to hire Pemberton, who has lobbied in the past, after learning that he was "interested in making a career change."

The hiring should not raise concerns about the revolving door between regulators and regulated industries, she said, because Pemberton will lobby Congress, not his former employers at the EPA.

Natural Resources Defense Council Clean Air project head John Walke wasn't buying it. He said the move toward loosening pollution standards has been going on for two years, and that Pemberton's late withdrawal from Southern Co.-related issues is meaningless.

The council helped spur a series of U.S. Justice Department lawsuits in 1999 and 2000 against Southern Co. and other utilities over alleged systematic violations of the Clean Air Act's "new source review" rule -- the anti-pollution requirement that became much easier on utility companies last week.

The changes announced last week make legal some of what had been considered Clean Air Act violations by the utilities.

Changing the "new source review" rule was one of Southern Co.'s top issues in Washington, and the company employed its considerable lobbying clout, Walke said. "The whole 'new source review' assault was led by Southern Co. and Southern Co. lobbyists," he said.

Southern Co. was the top financial campaign contributor among energy companies in the last federal election cycle and employs some of the top lobbyists in Washington, in addition to the in-house stable of lobbyists Pemberton now joins.

The rule change approved last week makes it easier for utilities to improve their older, and typically dirtier, plants without installing state-of-the-art pollution controls.

The old "new source review" rule required utilities and other polluters to get a permit from the EPA to significantly modify an old plant. Based on the size and potential pollution impact of the modification, the EPA would then decide whether the company needed to install modern pollution controls.

The rule was intended to discourage companies from taking advantage of the fact that older plants were grandfathered out of the 1970s Clean Air Act, on the assumption they eventually would be retired.

The Justice Department lawsuits claim Southern Co. and other utilities violated the Clean Air Act by improving older, dirtier plants without consulting the EPA or installing pollution controls.

Southern and other utilities maintain they were only doing routine maintenance, which did not require input from the EPA.

Under the relaxed rule approved by the EPA last week, companies can improve their plants as long as a project's cost is not more than 20 percent of the plant's value.

The Justice Department lawsuits will continue, according to Southern Co., although it is unclear how they will fare now that the law that was allegedly broken has been changed. The first verdict in the suits came last month. The defendant, Ohio's FirstEnergy Co., lost.





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