Comment on Proposed EPA Loophole

Proposed rules weaken air pollution controls and prevent the public from obtaining copies of plans to minimize emmissions during startup, shutdown, and malfunctions.

EPA has proposed new rules that would weaken air pollution control requirements for companies that emit hazardous air pollutants, like benzene and butadiene. The new rules would prevent the public from obtaining copies of companies' plans for limiting hazardous emissions during startups, shutdowns, and malfunctions, and - worse yet - would no longer require companies to comply with such plans.

Why does it matter? The Clean Air Act requires EPA to regulate hazardous air pollutants for a reason - they are harmful to people's health. It doesn't matter whether a big release of benzene is caused by regular company operations, or by a startup or shutdown. Either way, it can cause cancer. Technology has developed so that companies are often able to meet hazardous pollution limits during SSM. Instead of recognizing this and eliminating the broad loophole allowing companies to exceed pollution limits during SSM, EPA is expanding the loophole and limiting public access to important information about what companies should be doing to minimize emissions.

How would the new rules change current law? Under current rules - called the National Emission Standards for Hazardous Air Pollutants (NESHAPs) - companies are generally allowed to exceed hazardous air pollution limits during startups, shutdowns and malfunctions (SSM). Companies must, however, comply with plans that they have developed specifying how they will minimize emissions during SSM. The public can get copies of these plans to determine whether the plans are adequate and whether companies are complying with them.

Under the new rules, companies would still have to develop SSM plans, but they would no longer have to comply with them. Instead, they would only be subject to the vague, general duty to minimize emissions during SSM. To make matters worse, the public would no longer have the right to obtain a copy of the SSM plan from the company, so there would be no way for the public to determine whether a company's plan was adequate and whether or not the company was complying with the plan.

What can you do? The comment period on EPA's proposed rule closes on September 12, 2005. You can sign on to the attached comment letter by emailing Kelly Haragan at kharagan@environmentalintegrity.org (202-263-4449) by September 11th or you can draft a comment letter of your own telling EPA to: (1) protect public health by eliminating the general SSM loophole and making any SSM plans enforceable, and (2) protect the public's right to know by making SSM plans available to the public.

Proposed letter:

September 12, 2005

United States Environmental Protection Agency, EPA West (Air Docket), 1200 Pennsylvania Ave., NW. Room B108, Mail Code: 6102T, Washington, DC 20460

Re: Attention Air Docket ID No. OAR-2004-0094

To Whom it May Concern:

We are writing to express our opposition to EPA’s proposal to weaken the regulation of hazardous air pollutants during startups, shutdowns and malfunctions. By their very nature, emissions of hazardous pollutants present a health threat. This is true whether the emissions result from normal operations, or from startup, shutdown or malfunction (SSM).

EPA’s proposed changes to the General Provisions of the National Emission Standards for Hazardous Air Pollutants (NESHAP) would enlarge the already problematic loophole for emissions from SSM. These emissions can be very large and, in some cases, can even dwarf a facility’s regular emissions. By exempting these emissions from compliance with NESHAP emission standards and subjecting facilities to only a general duty that SSM emissions be “minimized” EPA is jeopardizing the public health.

As the Wall Street Journal recently reported: Something about modern living has driven a steady rise of certain maladies, from breast and prostate cancer to autism and learning disabilities. One suspect now is drawing intense scrutiny: the prevalence in the environment of certain industrial chemicals at extremely low levels. A growing body of animal research suggests to some scientists that even minute traces of some chemicals, always assumed to be biologically insignificant, can affect such processes as gene activation and the brain development of newborns. Wall Street Journal, July 25, 2005 “Common Industrial Chemicals in Tiny Doses Raise Health Issue.”

Cities and counties across the country – like Jefferson County, Kentucky and Houston, Texas – are discovering that their residents are exposed to unsafe levels of toxic air emissions and are taking action. Meanwhile, EPA is moving in the opposite direction and is expanding loopholes that will likely expose the public to even greater levels of toxic pollution. As individuals and organizations whose members live near and are impacted by facilities that emit hazardous pollutants, we believe EPA should:

1. Close the SSM loophole: Many companies can, and should be required to, meet hazardous pollution limits during SSM. EPA should eliminate the SSM loophole from the NESHAP general rules.
2. Require SSM plans to be enforceable: To the extent that SSM plans are required they should be enforceable requirements.
3. Require SSM plans to be publicly available: The public has a right to know how a company plans to control its hazardous emissions during SSM, to evaluate whether that plan is reasonable, and to track whether the company complies with the plan. This is not possible unless SSM plans are easily accessible to the public.

We, therefore, strongly oppose EPA’s current rule proposal and ask that it be withdrawn. EPA should strengthen protections for communities exposed to hazardous pollution rather than weakening controls on that pollution.

Sincerely,