Earthjustice Challenges EPA Decision To Stall Cleanup of Toxic Air Pollutants

Suit challenges agency attempt to nullify act of Congress


Ken Goldman


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Earthjustice filed suit today in the United States Court of Appeals for the District of Columbia Circuit. Representing Sierra Club, Earthjustice will challenge a Bush administration decision to stall the control of toxic emissions from more than 80,000 major sources of hazardous air pollutants.

“Congress didn’t want EPA to stall on these key standards to protect public health,” said Earthjustice attorney James Pew. “When Congress passed the Clean Air Act Amendments in 1990, EPA already had been stalling for twenty years. Precisely for that reason, Congress enacted strict deadlines by which EPA had to act.”

In addition to deadlines, Congress enacted the ‘hammer provision’ of the Clean Air Act. The Act provides that when EPA misses a deadline for hazardous air pollutant regulations by more than 18 months, industrial facilities and state agencies must swing into action. To stay in business, each facility in each industrial category for which EPA’s emission standards are overdue must apply for a special permit from its state. State agencies must then set emissions standards equivalent to those the agency should have set, on a case-by-case basis.

“The purpose of the hammer is to ensure that the control of hazardous air pollution doesn’t get held up,” said Marti Sinclair, chair of Sierra Club’s environmental quality strategies team. “Because these pollutants are so dangerous, Congress provided an insurance policy against EPA delay.”

However, as Congress feared, EPA has delayed. The agency has missed every deadline in the Clean Air Act for air toxics control, and the agency is now almost eighteen months late on standards to control the emissions of more than 80,000 major polluters. Under the law, state standard setting processes must begin on May 15, 2002.

“That’s where the Bush administration steps in,” said Pew. “Rather than let the law protect public health – as Congress intended it to – EPA is trying to rewrite the law. Industry groups have told EPA that the law is inconvenient and that’s all the Bush administration needs to hear.”

“There will be real and tragic effects of this sellout,” said Jane Williams, chair of Sierra Club’s combustion task force. “Many communities have already been subjected to horrendous levels of toxic pollution – in some cases with devastating health effects. Sentencing the people in these communities to years more of uncontrolled toxic emissions is outrageous.”

For a Sierra Club report on the hammer, visit

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