Long-Overdue Toxic Air Pollutant Reviews Stretch Thin EPA Staff (Corrected)

By Jennifer Lu

The EPA must complete overdue reviews for more than 40 industrial emissions standards for hazardous air pollutants starting later this year, even as concerns persist that the agency is more interested in rolling back regulations than fulfilling its obligations.

These reviews, which the Environmental Protection Agency has routinely failed to complete on time, make up part of the agency’s core mission, would fit the bill for EPA Administrator Scott Pruitt’s “back-to-basics” campaign.

But the EPA is simultaneously pursuing a packed deregulatory agenda while aggressively reducing the agency’s workforce, leaving some environmental advocates deeply concerned that the standards meant to protect people living near industrial sources of toxic air pollution will continue to fall by the wayside.

“The agency is putting its resources into deregulation and decisions that will hurt people instead of doing what the law actually requires,” James Pew, an Earthjustice lawyer, told Bloomberg Environment. Pew represents environmental groups in several lawsuits over the EPA’s failure to complete the required toxic pollution reviews.

As of September 2017, the agency had allocated 37 full-time positions within its air toxics division to complete more than 30 overdue reviews, the EPA told judges as part of a recent lawsuit over the delays. The EPA said the division couldn’t take on any additional reviews until 2020.

EPA Reaches Out to Industry

The Environmental Protection Agency did not respond to repeated inquiries asking for more recent staffing figures. But some of those reviews are already underway, according to the EPA and regulated industries.

First up are the toxic pollutant standards for Portland cement kilns, which the EPA must complete in July.

“The staff have been responsive in looking at the best data possible, conducting a robust analysis, so that’s good,” Charles Franklin, vice president and counsel for government affairs for the Portland Cement Association, told Bloomberg Environment.

The EPA in September 2017 had proposed no changes to the numeric toxic pollutant standards, finding the current requirements sufficient.

Sarah Amick, vice president of environment, health, safety, and sustainability and senior counsel at U.S. Tire Manufacturers Association, told Bloomberg Environment the EPA has already begun the review process for rubber tires, due in 2020,

“They just reached out to us to start our [risk and technology review] process and we figured we were next up in the queue,” Amick said.

‘Never Enough Resources’

Under the Clean Air Act, the EPA must set emissions limits on hazardous air pollutants known to increase the risk of cancer or cause other serious health effects, emitted by 118 industrial source categories. The standards for these pollutants, which include benzene, toluene, hydrochloric acid, and heavy metals, must be reviewed every eight years in light of new public health research and advances in pollution control technologies.

Because the EPA misses the deadlines for these risk and technology reviews, they become “no-brainers” for lawsuits from environmental groups, Janet McCabe, who was acting assistant administrator of the EPA’s air pollution office during the Obama administration, told Bloomberg Environment.

“While I was at EPA, there was never enough resources to meet those deadlines,” McCabe said.

The agency faces court-ordered deadlines to complete 33 overdue reviews as part of two different lawsuits and an upcoming deadline to review toxic emissions from Portland cement manufacturing. The EPA must complete eight reviews by the end of 2018, 20 reviews by March 2020, and six by June 2020. The overdue reviews for nine more industrial source categories are subject to another ongoing lawsuit.

In all three cases, the agency blamed its slow progress on a lack of resources.

“Given the funding and other resource constraints facing the agency, EPA is not able to perform all activities it may want to perform, and that it is authorized to perform, at any given time,” Panagiotis Tsirigotis, who leads the division within EPA responsible for the reviews, said in a written declaration filed January 2017.

As of September 2017, 78 of the division’s 84 employees were assigned to work on the reviews, or approximately 37 full-time equivalent staff positions, the agency told a federal court.

Same Office Rolling Back Regulations

The division also works on carbon-dioxide standards for power plants and methane limits for oil and gas wells—the Trump administration has sought to eliminate both. However, the resources diverted to these projects were small and “would have little impact on EPA’s ability to conduct rulemaking in the unrealistic time periods” requested by environmental litigants, Tsirigotis said.

Recent toxic pollutant standards reviews have taken at least two and half years to complete, with the majority of rules spanning between three to four years, the EPA told a federal court.

In more difficult cases, the EPA had to ask litigants for more time to complete their reviews, McCabe said, but the trade-off is that these rules are based on the most recent industry data.

“If it moves too fast,” she said, “the rule is not good or it gets finalized in a way that gets subject to requests for reconsideration.”

The lengthy reviews mean that regulated industries can continue to comply with standards with which they are already familiar, Jeff Holmstead, partner at Bracewell LLP in Washington, D.C., told Bloomberg Environment.

“There’s so much to do and [the EPA doesn’t] have the staffing, but the process isn’t necessarily disruptive when the EPA takes longer than eight years to finalize each review, Holmstead said.