"This decision is a breath of fresh air" said Sierra Club air committee chair Marti Sinclair. "EPA's failure to control air toxics has left millions of Americans exposed to high levels of risk for cancer and other disease. Congress ordered EPA to bring this problem to heel in 2000, and for six years this agency has just ignored the law. While we prefer compromise and discussion to legal action, it is heartening to know that in situations like this where there is gross neglect, the Court can force action for the public good."
The court's decision follows closely on the heels of a Government Accountability Office (GAO) report issued last week, which found that EPA has failed to protect the public from air toxics. The GAO reported that EPA had de-prioritized air toxics control and had failed to set any limit on the poisonous emissions from dozens of categories of smaller industrial sources. EPA itself has acknowledged these uncontrolled sources to be the worst contributor to toxic urban air, and the agency's own studies show that they create unacceptable risks of cancer and other disease.
Rejecting EPA's excuse that it lacked resources to control air toxics, the Court found the agency has neglected its obligations under the Clean Air Act while pursuing its own regulatory agenda: "EPA … currently devotes substantial resources to discretionary rulemakings, many of which make existing regulations more congenial to industry, and several of which since have been found unlawful." The Court found EPA's failure to meet its statutory obligations "owes less to the magnitude of the task at hand than to the 'footdragging efforts of a delinquent agency' … or an attempt by EPA to prioritize its own regulatory agenda over that set by Congress."
"EPA needs to spend taxpayer dollars that Congress entrusts to it on the tasks that Congress set," said Earthjustice attorney James Pew, who represented Sierra Club in the suit. "By diverting taxpayer dollars away from the tasks that Congress set and toward the current administration's anti-environmental agenda, EPA has betrayed the public trust. It is unfortunate that Americans should be sickened literally as well as figuratively by this agency's conduct."
A list of twelve examples of the discretionary rulemakings on which EPA has squandered public resources while neglecting statutory mandates for public health protection is included below.
1) Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Allowables Plantwide Applicability Limit (PAL), Aggregation, and Debottlenecking. 70 Fed. Reg. 64233, 64239-64240 (October 31, 2005) (discretionary rulemaking to change provisions that determine when emissions increases trigger New Source Review).
2) Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units and Removal of Coal- and Oil-Fired Electric Utility Steam Generating Units From the Section 112(c) List, 70 Fed. Reg. 15994 (March 29, 2005) (discretionary rulemaking to remove coal-fired power plants from the list of sources for which air toxics standards are required).
3) Expanding the Comparable Fuels Exclusion under RCRA. 70 Fed. Reg. at 64250-64251 (discretionary rulemaking to redefine certain hazardous waste as "comparable fuel," thus exempting it from regulation under Resource Conservation and Recovery Act).
4) Toxics Release Inventory Reporting Burden Reduction Rule. 70 Fed. Reg. at 64251 (discretionary rulemaking to reduce industry's toxic release reporting requirements).
5) Revision to Policy on Control of Volatile Organic Compounds (VOC). 70 Fed. Reg. 65206, 65231 (October 31, 2005) (discretionary rulemaking to "exempt certain organic compounds from control in volatile organic compound regulations").
6) Control of Air Pollution from Motor Vehicles and Engines: Alternative Low-Sulfur Highway Diesel Fuel Transition Program for Alaska. 70 Fed. Reg. at 65239-65240 (discretionary rulemaking to exempt Alaska from national emission standards for heavy-duty highway vehicles and engines).
7) NESHAP: Total Facility Low Risk Determination (TFLRD) for Residual Risk. 70 Fed. Reg. at 65244 (discretionary rulemaking to allow facilities "to avoid applicable residual risk standards").
8) Flexible Air Permit Rule. 70 Fed. Reg. at 65246 (discretionary rulemaking to allow sources to modify equipment and operations without obtaining approval from permitting authority).
9) Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Routine Maintenance, Repair, and Replacement (RMRR); Maintenance and Repair Amendments. 70 Fed. Reg. at 65248 (additional discretionary rulemaking to exempt activities from New Source Review requirements).
10) NESHAP: General Provision—Amendments. 70 Fed. Reg. at 65248 (discretionary rulemaking to revise EPA policy on when a major source of hazardous air pollutants can avoid emission reduction requirements by becoming an area source).
11) Exemption of Certain Area Sources from Federal and State Operating Permit Programs. 70 Fed. Reg. at 65266 (discretionary rulemaking to exempt certain categories of area sources from permitting requirements).
12) Deferral of Effective Date of Nonattainment Designations for 8-Hour Ozone National Ambient Air Quality Standards for Early Action Compact Areas. 70 Fed. Reg. at 65285 (discretionary rulemaking "to defer the effective date of nonattainment air quality designations for 'Early Action Compact Areas' that are violating the 8-hour ozone standard").
James Pew / Jared Saylor, Earthjustice, (202) 667-4500