EPA Toxic Loophole Poses “Unacceptable Risks” to Americans’ Health, Must Be Immediately Withdrawn – EDF Testimony

(Washington, D.C. – August 15, 2019) EDF joined a chorus of Americans at a public hearing today to urge EPA to immediately close a dangerous loophole for toxic pollution.

“EPA’s proposal is contrary to the Clean Air Act, and poses unacceptable risks of exposing families and communities to higher levels of dangerous pollutants such as benzene and mercury,” said EDF legal fellow Lance Bowman in his testimony at today’s hearing. “We urge EPA to withdraw this reckless and unlawful proposal.”

EPA’s loophole applies to “maximum achievable control technology,” or MACT, standards for hazardous air pollutants under the Clean Air Act. These standards generally apply to large industrial facilities, like refineries and chemical plants, that emit high amounts of 187 dangerous or cancer-causing pollutants.

Until January 2018, those “major source” facilities had to comply with the MACT standards for as long as they operated. Then, former EPA Administrator Scott Pruitt created a loophole – in a memo issued contrary to law and without any opportunity for public comment or any analysis of air pollution and health impacts. The loophole allows facilities to opt out of the MACT standards if their pollution levels drop below major source thresholds.

EPA has been implementing the loophole ever since, in spite of its unlawful genesis and in spite of a pending lawsuit against it. (EDF is a party to that lawsuit. The U.S. Court of Appeals for the D.C. Circuit heard oral argument in the case in April.) At least 34 facilities have been able to escape clean air protections for large sources under the loophole so far. An EDF report found as many as 26 major facilities in the Houston area alone that are potentially eligible to use the loophole, and that those facilities could increase their emissions of toxic air pollution by as much as 152 percent.

Then this June, a year and a half after it started implementing the loophole, EPA formally proposed to codify this change in policy. As Bowman explained in his testimony, EPA’s own analysis for the proposal indicates that almost four thousand facilities across the country could ultimately use the loophole – potentially resulting in millions of pounds of additional hazardous air pollution.

At the end of July, EPA abruptly announced one – and only one – public hearing. That hearing is taking place today at EPA headquarters in Washington, D.C. In his testimony, Bowman also urged EPA to hold more hearings and listen to concerned Americans.

“Given that the proposal undermines protections that have been in place for almost a quarter-century and could lead to increased hazardous air pollution at thousands of major industrial facilities, it is vital that the public have ample opportunity to weigh in,” he testified.