EPA delinquent in air toxics enforcement

A federal court has found the US Environmental Protection Agency's efforts to protect public health from toxic air pollution to be "grossly delinquent." Deciding a lawsuit brought by the Sierra Club against EPA Administrator Stephen Johnson, the US District Court for the District of Columbia ordered the EPA to issue dozens of overdue air toxics controls. "This decision is a breath of fresh air," said Sierra Club air committee chair Marti Sinclair. "EPA's failure to control air toxics has left millions of Americans exposed to high levels of risk for cancer and other disease." The court's decision on Aug. 3 follows a Government Accountability Office (GAO) report issued in late July, which found that the EPA has failed to protect the public from air toxics. The GAO reported that the environmental agency had de-prioritized air toxics control and had failed to set any limit on the poisonous emissions from dozens of categories of smaller industrial sources. EPA itself has acknowledged these uncontrolled sources to be the worst contributor to toxic urban air, and the agency's own studies show that they create unacceptable risks of cancer and other disease. Rejecting EPA's excuse that it lacked resources to control air toxics, the court found the agency has neglected its obligations under the Clean Air Act while pursuing its own regulatory agenda, writing, "EPA... currently devotes substantial resources to discretionary rule-makings, many of which make existing regulations more congenial to industry, and several of which since have been found unlawful." "EPA needs to spend taxpayer dollars that Congress entrusts to it on the tasks that Congress set," said Earthjustice attorney James Pew, who represented Sierra Club in the lawsuit. "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," said Pew. "It is unfortunate that Americans should be sickened literally as well as figuratively by this agency's conduct." One of 12 examples of the discretionary rule-makings on which Earthjustice says the EPA has "squandered public resources while neglecting statutory mandates for public health protection" is the deferral of effective date of nonattainment designations for 8-Hour ozone National Ambient Air Quality Standards for Early Action Compact Areas. On Aug. 4, one day after the court's ruling, the EPA offered 14 communities just such a deferral, their third. These communities committed themselves to meeting EPA's 8-hour ozone standard by Dec. 31, 2007, one to two years earlier than required by the Clean Air Act, but they are not there yet. If they make that deadline they will be designated as in attainment of the 8-hour ozone standard. In the meantime, as long as these 14 Early Action Compact areas meet agreed milestones to reduce ozone pollution in their areas, certain Clean Air Act requirements, such as controls on new sources of emissions, are deferred by the EPA and will not apply. Early Action Compacts provide an incentive for state and local governments, civic leaders and business interests to develop strategies for improving ozone air quality in ways that are tailored to individual communities, the EPA says. But the court found EPA's failure to meet its statutory obligations "owes less to the magnitude of the task at hand than to the 'foot-dragging efforts of a delinquent agency'... or an attempt by EPA to prioritize its own regulatory agenda over that set by Congress." Any compact area that does not meet the standard by Apr. 15, 2008, will be subject to the mandatory Clean Air Act requirements to reduce ground-level ozone, the EPA says. But that way of handling the requirements of the Clean Air Act is not sufficient in the Sierra Club's view. "Congress ordered EPA to bring this problem to heel in 2000, and for six years this agency has just ignored the law," said Sinclair. "While we prefer compromise and discussion to legal action, it is heartening to know that in situations like this where there is gross neglect, the Court can force action for the public good."