For over a decade, Earthjustice has represented a variety of environmental, public health and community groups in litigation challenging EPA's failure to implement the Clean Air Act's air toxics provisions. The following is a statement by Earthjustice attorney James Pew:
"The GAO report reflects the sad reality that this EPA is unwilling to control the health risks presented by toxic air emissions. It confirms EPA has left many categories of smaller industrial sources entirely uncontrolled, even though the agency has acknowledged these sources to be the worst contributors to America's toxic urban air. EPA's own studies show that the uncontrolled pollution from these sources create unacceptable risks of cancer and other disease.
"The GAO report also confirms EPA's striking disregard for the authority of Congress. In 1990, Congress passed a law requiring EPA to set standards controlling urban toxic pollution within ten years, by November 15, 2000. More than 75 percent of these standards have yet to be issued. Thanks to EPA's neglect, millions of Americans are exposed to high levels of risk for cancer and other disease that should have been abated years ago.
"The GAO report states the obvious: EPA needs to set priorities, establish timelines, and develop a plan to get adequate funding for air toxics control. But EPA also needs to spend taxpayer dollars that Congress entrusts to it on the tasks that Congress set. Amazingly, while EPA has neglected Congressional mandates to address air toxics, the agency has spent resources freely on entirely discretionary activities that do nothing whatsoever to benefit public health or the environment. A list of twelve examples is attached. 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 deplorable that Americans will be sickened literally as well as figuratively by this agency's conduct."
For additional information on types of toxic air polluters, please visit our feature on air toxics. To speak with people from around the country to get perspectives on how toxic air pollution is impacting their lives, contact Jared Saylor, at 202-667-4500
Examples of EPA's Discretionary Activities
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").