Trump EPA Finalizes Air Toxics Loophole That Will Allow More Dangerous, Cancer-Causing Pollution

(Washington, D.C. – October 1, 2020) The Trump EPA today finalized a loophole in the laws protecting Americans from hazardous industrial pollution, leaving millions of people more vulnerable to benzene, mercury and other dangerous or cancer-causing pollutants.

The loophole would allow thousands of large industrial facilities that are currently regulated as “major” sources to opt out of protective standards for hazardous air pollutants – undermining the permanent reductions in pollution that these essential Clean Air Act protections are intended to achieve. Many of the facilities that could increase pollution under the loophole are in low-income communities and communities of color. They are already suffering disproportionate burdens from more air pollution and are the most vulnerable to the health impacts of poor air quality.

“EPA’s reckless decision to allow large sources of dangerous pollution to pollute even more – and in the midst of a pandemic that has already claimed more than 200,000 American lives – undermines the Clean Air Act and endangers the health of communities nationwide,” said Tomás Carbonell, lead attorney for Environmental Defense Fund. “This rollback of vital health protections is as unlawful as it is outrageous, and we will make every effort to oppose it.”

Under the Clean Air Act, large industrial facilities must comply with “maximum achievable control technology” standards (MACT standards) if their emissions of hazardous air pollutants exceed “major source” thresholds. The MACT standards apply to 187 dangerous and cancer-causing pollutants, and are so effective in reducing air pollution that they often cause industrial facilities to fall well below the thresholds. For that reason, EPA interpreted the Clean Air Act in 1995 to require major industrial facilities to comply with MACT standards for as long as they operate. That “once in, always in” interpretation remained in place for over twenty years.

The Air Toxics Loophole finalized today would allow any major pollution source to reclassify itself as a smaller “area source” if it emits below the major source threshold – even if it is only emitting below the threshold because it is complying with MACT standards. EPA’s own analysis of its proposed rule that was issued in July of last year projected that 3,912 industrial facilities nationwide, such as refineries and chemical plants, could take advantage of this loophole to avoid MACT standards and instead become subject to weaker standards – or no standards at all. EDF evaluated information provided by EPA in that proposal on almost 1,600 of those facilities located in 48 states, and found the potential for an increase of over 49 million pounds per year in toxic air pollution.