Coming Soon: Trump EPA is Expected to Sign a Final “Air Toxics Loophole” That Will Increase Public Health Risk

EPA Administrator Andrew Wheeler is expected to soon sign a final rule creating an “Air Toxics Loophole” in the Clean Air Act. That loophole would allow large industrial facilities nationwide to avoid complying with rigorous limits on hazardous air pollutants such as benzene and mercury.

EPA’s own analysis indicates that this radical new policy would affect thousands of major pollution sources, such as refineries and chemical plants, located in almost every state. EPA’s analysis also shows this policy risks increasing harmful air pollution by millions of pounds each year.  Many of the facilities that could take advantage of the Air Toxics Loophole are located in low-income communities and communities of color that are already suffering disproportionate burdens from air pollution and are most vulnerable to the health impacts of poor air quality.

The signing of the final Air Toxics Loophole will be only the latest in a series of outrageous Trump administration attacks on fundamental climate, clean air, and health protections that have taken place just since the coronavirus pandemic began – and one of at least 100 attempted rollbacks of environmental and public health protections that have taken place since 2017. EDF will forcefully oppose any final rule that weakens our nation’s bedrock safeguards against hazardous air pollution from industrial facilities.

Here is some important information about the Air Toxics Loophole:

The Air Toxics Loophole allows large polluters to avoid complying with rigorous limits on dangerous air pollutants. 

Under the Clean Air Act, large industrial facilities are required to comply with rigorous “maximum achievable control technology” standards (MACT standards) once their emissions of hazardous air pollutants exceed certain “major source” thresholds. These standards, which apply to 187 dangerous and cancer-causing pollutants, are so effective in reducing air pollution that they often cause industrial facilities to fall well below the “major source” thresholds. For that reason, EPA interpreted the Clean Air Act in 1995 to require major industrial facilities to comply with MACT standards for as long as they operate.

That “once in, always in” interpretation remained in place for over twenty years, under administrations of both parties – until former EPA Administrator Scott Pruitt abruptly withdrew it in January 2018, in a four-page memo that was issued without notice and comment and with no analysis of potential air pollution or public health impacts. (After EDF and our allies challenged that memo in court, the D.C. Circuit issued an opinion last August holding that the memo had no legal force or effect and dismissing our case on procedural grounds). Then last July, Wheeler proposed to codify this Air Toxics Loophole in a new federal regulation that would allow any major pollution source to reclassify itself as a smaller “area source” if it emits below the major source threshold. The regulation would thus allow those sources to “opt out” of MACT standards and instead become subject to weaker standards – or no standards at all.

Possible increase in total air toxic emissions from a subset of facilities eligible to reclassify under the air toxics loophole, aggregated at state and city level. In many areas, this loophole could lead to a quadrupling of air toxics from these facilities. Graphic by EDF.

The Air Toxics Loophole would allow thousands of facilities nationwide to avoid rigorous pollution standards, risking millions of additional pounds of toxic air pollution each year. 

EPA’s own analysis of the proposed rule projects that 3,912 industrial facilities nationwide could ultimately take advantage of the Air Toxics Loophole.

EPA did not evaluate the full air pollution impacts of this radical deregulation of industrial air pollution, but its assessment of a small sliver of these facilities found the possibility for immense damage. EPA found that just 86 facilities could increase toxic air pollution by 2.4 million pounds per year.

In comments submitted last fall with the Sierra Club, EDF evaluated information provided by EPA on almost 1,600 facilities located in 48 states – and estimated that these facilities could increase hazardous air pollution by as much as 480% under the new policy, discharging over 49 million pounds of additional hazardous air pollution per year. Many of these facilities are located in heavily populated industrial areas in states like Texas, California, Louisiana, Michigan, Indiana and Ohio (see map below).

The Air Toxics Loophole would disproportionately affect low-income communities, communities of color, and vulnerable populations.

Many of the facilities that could take advantage of the Air Toxics Loophole and increase air pollution are located in low-income communities and communities of color that already suffer disproportionately from air pollution and are most vulnerable to the resulting health impacts.

EDF’s analysis of the 86 facilities that EPA projected would increase air pollution under its proposed rule found that 91% are located in census blocks where the percentage of minorities exceeds the national median and that 73% are located in census blocks where the percentage of the population qualifying as low-income exceeds the national median. Nearly four in five of the facilities are located in census blocks where the percentage of elderly residents and young children exceed the national median. As we pointed out in our comments, EPA completely failed to consider these inequitable impacts and effects on vulnerable populations in the proposed rule.

The Air Toxics Loophole is unlawful and arbitrary. 

Section 112 of the Clean Air Act clearly requires major sources of pollution to comply with MACT standards, and directs EPA to ensure that those standards prohibit or eliminate hazardous air pollution where feasible. Allowing major industrial facilities to “opt out” of MACT standards any time their air pollution falls below the threshold would defeat the text, structure, and purpose of this bedrock Clean Air Act protection.

EPA’s proposed rule also fails to adequately consider the nationwide health or air pollution impacts of abruptly reversing a protective policy that has been in place for more than two decades, or to consider the impacts on vulnerable communities already disproportionately overburdened by pollution.