Years of work remain on tardy toxics reviews — EPA official

Source: Sean Reilly, E&E reporter • Posted: Thursday, March 3, 2016

U.S. EPA, already far behind in conducting legally required reviews of toxic air pollutants, will need years more to finish 20 that are now the subject of a lawsuit, a senior manager said in a recent court filing.

“Given the funding and other resource constraints facing the agency, EPA is not able to perform all activities that it may want to perform, and that it is authorized to perform, at any given time,” Panagiotis Tsirigotis, director of the sector policies and programs division within EPA’s air quality standards office, said in a declarationentered last week in U.S. District Court for the District of Columbia.

Under the Clean Air Act, EPA was supposed to have completed a residual “risk and technology review” of hazardous air pollution from integrated iron and steel plants by 2011; Tsirigotis has instead proposed wrapping it up in 2018. A review of emissions from hydrochloric acid producers, also due in 2011, would be pushed back until 2019. For boat manufacturers, the lookback originally scheduled for 2009 would instead conclude with a final rulemaking in 2021.

Tsirigotis’ filing, made under penalty of perjury, is part of EPA’s bid to end a lawsuit brought last year by a coalition of environmental groups that want past-due reviews of a total of 20 emission sources completed on a much tighter timetable.

All fall under the umbrella of major pollution sources and encompass several thousand facilities that each spew tons of emissions — including carcinogens — each year, California Communities Against Toxics and eight other groups wrote in a November 2015 motion. For half of the 20 sources, they said, EPA should complete reviews within a year, with the remainder following a year later.

Taking any longer “would set back the agency’s work even further on other rulemaking obligations coming due,” they added.

U.S. District Judge Tanya Chutkan has not yet ruled on either side’s motions for summary judgment.

The standoff is among the latest in a long-running series of court clashes over EPA’s handling of the air toxics review mandates set by the 1990 Clean Air Act Amendments.

The law sets out 189 pollutants to be regulated; after establishing emissions standards for major sources based on what is known as “maximum achievable control technology,” the agency is then supposed to follow up with another review within eight years to determine both whether the technology has improved and whether any “residual risk” remains to public health, according to court filings.

But the agency has been chronically tardy in hitting that eight-year mark. In its November filing, the plaintiffs’ coalition described EPA’s overall track record on meeting the 1990 air toxics mandates as “dismal.” It also attached a 2006 Government Accountability Office report that called the program a “relatively low priority” within EPA, with an agenda driven more by lawsuits than a comprehensive implementation strategy.

GAO has not revisited those findings, which EPA leaders at the time did not specifically dispute. And litigation remains important in prodding the agency to act, court records indicate. As one reason for needing up to five years to finish the 20 reviews in question, Tsirigotis pointed to four others required as the result of other court action.

Tsirigotis also laid out a timeline for the actual mechanics of carrying out the review.

Among nine distinct steps, EPA will have to collect fresh information from many of the polluting sources, put together risk assessments and then develop final rules. On a shorter schedule, EPA “would be forced to take procedural or analytical shortcuts that I believe could jeopardize both the soundness of the regulatory actions and their legal defensibility,” Panagiotis said. No recent residual risk and technology review has been completed in less than 2 ½ years, he added, and any suggestion that the job can be done more quickly “is without merit.”

The plaintiffs argue their proposed two-year window furnishes plenty of time. EPA “has consistently completed complex Clean Air Act rulemakings within five to seven months” of the original proposal under the same process required for the risk reviews, according to their November motion. If resources are a barrier, they said, the agency can hire contractors and redirect staff “from the many discretionary actions and initiatives it is currently undertaking.”

EPA is facing at least two other legal challenges intended to force it to move more quickly on residual risk and technology reviews for other air pollution categories.

In a lawsuit filed last week, four other environmental groups said that regulators are as many as six years overdue in revising standards for 13 sources, while a separate complaint launched a year ago in the Northern District of California similarly alleges that the agency is behind schedule and is relooking at emissions standards for yeast manufacturers and pulp mills. Attorneys from Earthjustice are representing the plaintiffs in all three cases.

In a declaration in the California case similar to that of Tsirigotis, acting EPA air chief Janet McCabe said last August that the agency needed until mid-2017 to finish the pulp mill review, followed by the yeast makers retrospective at the end of 2018. The plaintiffs, the Sierra Club and California Communities Against Toxics, contend that one year is enough for both. After a October hearing, U.S. District Judge Haywood Gilliam has not ruled on competing motions for summary judgement.