EPA creates loophole for toxic air pollution

“EPA’s action is dangerous and shameful.”

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The US Environmental Protection Agency (EPA) formally proposed a new rule that would allow for a loophole that will result in an increase in toxic pollution.

The new loophole allows facilities to opt out of the “maximum achievable control technology”, or MACT if their pollution levels drop below major source thresholds. The MACT standards apply to large industrial facilities that emit high amounts of toxic pollutants. These facilities will no longer have to monitor their emissions or accurately report them.

Previously these facilities had to comply with MACT standards as long as they were in operation. Then last year former EPA administrator Scott Pruitt issued a memo with the new loophole, without notice or public comment.

“EPA’s action is dangerous and shameful,” said Patrice Simms, Vice President of Litigation for Earthjustice, another group involved in the lawsuit. “People from overburdened communities need better protection from hazardous air pollution, instead the Trump Administration is trying to take away what protection they have.”

According to the Environmental Defense Fund, this new loophole will affect “18 major facilities in the Houston area alone.

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The Environmental Defense Fund, along with 10 other environmental and public health organizations filed a lawsuit last year challenging the EPA’s loophole. The case is still ongoing.

According to briefs filed in the case this year:

“[C]hanges a prior legislative rule, and decisively alters rights and obligations; it is consequently a final legislative rule, unlawfully issued without notice and comment … Furthermore, EPA has arbitrarily failed to address critical consequences of its decision.”

Early last year the EPA began implementing the rule but it has taken eighteen months for them to formally propose it. Under the Clean Air Act the EPA must formally propose a rule, open public comment on it, then finalize it. Public comment will be available for 60 days for the new proposal, however, the EPA will continue, as it has done for the last 18 months, to enforce the loophole before the comment period runs its course.

Since 1990 the Clean Air Act has helped protect Americans by requiring that all “major” sources of toxic air pollution reduce their hazardous emissions by the maximum achievable amount. The new memo fails to consider the the air pollution and public health impacts it will have.

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