By: Cynthia Palmer and Dominique Browning, Moms Clean Air Force
Date: November 13, 2023
About: Docket ID No. EPA-HQ-OAR-2023-0330
To: Environmental Protection Agency
Dear Administrator Regan,
Thank you for this opportunity to submit comments on your proposed Review of the Final Rule Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act. We are writing to urge EPA to close the loophole, restore the requirement that any limit allowing sources to reclassify be federally enforceable so that people can comment on and enforce the source permits, and require all facilities to monitor and report air emissions through publicly available channels.
As written, the rule is a missed opportunity to make conditions safer for workers and for people living amidst the toxic air pollutants emitted by industrial facilities. We note that most of these heavy polluters are located in low-income neighborhoods and communities of color. Many of the workers and residents—including families with infants and young children—are forced to breathe high concentrations of carcinogens, mutagens, teratogens, and reproductive toxicants 24 hours per day and 7 days per week. Many of these people are our members.
Moms Clean Air Force is a community of over 1.5 million moms and dads united against air pollution and working to protect our children’s health. We support robust safeguards for workers, frontline communities, and the climate. We fight for Justice in Every Breath, recognizing the importance of equitable solutions in addressing air pollution and climate change.
Failure to close the 2020 loophole and to reinstate federal enforceability
The EPA’s 2020 “Major MACT to Area” (MM2A) loophole allows heavy emitters of hazardous air pollutants to avoid pollution control, monitoring, and reporting requirements by reclassifying themselves as small polluters, known as “area sources.” Area sources typically have minimal control and monitoring requirements—or none at all.
EPA’s new proposal fails to close the loophole. It may allow facilities to sidestep the vastly more protective air pollution requirements of the Major source rules by dipping below the threshold amounts—10 tons of a single hazardous air pollutant or 25 tons of a combination. Even more cynical, facilities may be able to escape the Major source pollution control and monitoring requirements without reducing hazardous air emissions at all, simply by subdividing their operations and selling off sections so that no one part emits more than the threshold amounts. Facilities are doing this already, perhaps in anticipation of the rule.
The gulf between Major and Area sources is vast: once reclassified, many of these heavy industrial sources have no pollution control requirements whatsoever—and no monitoring and reporting obligations. We are puzzled by EPA’s repeated statements such as:
“Sources that reclassify are unlikely to remove control devices to reduce HAP or take other actions that would increase HAP emissions”
and
“Based on data available to the agency at this time, sources that have reclassified are unlikely to remove control devices to reduce HAP or take other actions that would increase HAP emissions.”
This seems like wishful thinking. Pollution controls save lives, but they cost money to install, maintain, and operate. It seems unlikely that a reclassified facility would keep using its pollution controls if not required. Surely it is not unheard of for facilities to shut off pollution controls when they can. Later in its proposal, EPA acknowledges that it lacks information on whether and how much the re-classified facilities have increased their emissions.
Particularly concerning is the possibility that EPA may allow big polluters in heavily overburdened and underserved communities to increase their emissions of the most toxic substances, such as mercury, dioxins, hexachlorobenzene and polychlorinated biphenyls (PCBs). Even the most minute quantities of these substances can cause cancer, birth defects, and other serious health harms. These pollutants have been singled out in section 112(c)(6) of the Clean Air Act given their extreme danger to humans. We urge EPA to close the loophole for all hazardous air pollutants and especially for this extraordinarily dangerous subcategory.
The 2020 MM2A Rule allowed polluting facilities to evade enforcement by EPA and by frontline communities, and it allowed the issuance of control avoidance limits (to avoid pollution controls by getting under the 10 ton/25 ton pollution thresholds) without public notice and comment.
The September 2023 EPA proposal does not restore these critical enforceability provisions. We urge EPA to add the word “federally” back into the definition of “potential to emit” in the federal HAP regulations at 40 C.F.R. §63.2 so that all control avoidance limits are publicly and federally enforceable and issued only after public notice and an opportunity to comment.
EPA’s proposal speaks generally of the importance of enhanced transparency, oversight, compliance assurance, and safeguards in order to protect the public from the health risks of hazardous air pollutants. It speaks of the value of “a method for determining compliance, including appropriate monitoring, recordkeeping, and reporting.” And yet it remains unclear exactly what data will become available to communities under the EPA proposal—this will depend on how EPA decides to proceed.
As noted above, the agency acknowledges that “Due to limited data available to the agency at the time of this proposal, the EPA does not have information regarding whether or how much emissions may have increased at any individual reclassified facilities…” It is not clear how the proposal will address this significant lack of data. Where are the monitoring, recordkeeping, and reporting requirements beyond those that would come with the yet-to-be-determined provisions for persistent and bioaccumulative HAP listed in Clean Air Act section 112(c)(6)? How will the public know if a facility’s dip below the MACT thresholds was temporary or longer term? It is not clear that communities, states, and EPA will have the needed data.
Which “burdens” do we care about?
Again and again throughout the proposal, EPA reassures industrial sources that the costs of compliance will be minimal and that the proposal will “relieve regulatory burden on net” for polluters. EPA states repeatedly that “…any potential costs associated with the reclassification of major sources as area sources (i.e., application reviews and PTE issuance) may be offset by reduced reporting and recordkeeping obligations for sources that no longer must meet major source NESHAP requirements, depending on case-specific circumstances.” The proposal reassures polluters that “We expect that sources that reclassify will experience cost savings that will outweigh any additional cost of achieving area source status.”
Unfortunately, relieving a company’s pollution-control burdens can sometimes mean adding to a community’s air pollution burdens.
The communities surrounding reclassified facilities and the people who work within them may have no recourse when the pollution levels spike following the transition from MACT to GACT. For a heavily polluting industrial facility, the reclassification is like scoring a home run. EPA does not require updates on the GACT standards. There are no minimums or floors. They can forgo pollution controls based on costs. There is no requirement that EPA evaluate the public health risk that remains after implementation of the GACT standards. Operating an industrial facility as an Area source is much different from operating a Major source.
The proposal states that “For sources that have reclassified from major source status to area source status since January 25, 2018, under the NESHAP program and prior to the effective date of the final rule, the changes to 40 CFR part 63 proposed in this action will be effective within three years of publication of the final rule.” This means that facilities that transitioned from Major source to Area standards in 2018 will have nearly a decade-long pollution-control holiday.
Meanwhile, the communities surrounding these facilities will experience 10 extra years of elevated air toxics. We urge EPA to adopt a more compressed timeline for the sake of the people exposed to these dangerous pollutants. Moreover, the new rules must apply to sources that have reclassified since the January 2018 Wehrum memo.
Why is it that polluting facilities are the “who” while real people are invisible?
The word anthropomorphic derives from the Greek word anthrōposi, which means "human being." The proposed rule anthropomorphizes industrial facilities, referring to these heavily polluting factories as “who,” as if they are people. Meanwhile, the communities near these big emitters…the people who are forced to breathe the excess toxic pollution… remain invisible throughout the rule. And the only mentions of “community” are to assure the “regulated community” that the burdens of this rule will be minimal, and to insist that President Biden’s executive orders do not apply.
Specifically, near the end of the proposal, EPA makes the following statements:
“This action is not subject to Executive Order 13045 because it does not directly regulate any emission source and will not have any direct impact on children’s health.”
and
“The EPA believes that this action does not have disproportionate and adverse human health or environmental effects on communities with environmental justice concerns because it does not establish an environmental health or safety standard.”
This is not convincing. Whether the ruling has an impact on children’s health or on environmental justice communities will largely depend on (1) whether EPA decides to bar industrial sources of dangerous toxics from sidestepping their obligations to reduce emissions to the maximum degree achievable, and (2) whether EPA ensures that all control avoidance limits are publicly and federally enforceable and issued only after public notice and an opportunity to comment.
The proposed rules are an opportunity to fix a giant loophole and to improve people’s lives. Please do not let these rules become a missed opportunity. They are critically important to Moms Clean Air Force’s core mission to protect children’s health and to EPA’s core mission to protect human health and the environment. We urge you to strengthen the requirements and to finalize them as quickly as possible.
Thank you for considering our comments.
Respectfully submitted,
Cynthia Palmer
Senior Analyst, Petrochemicals
Moms Clean Air Force
Dominique Browning
Director and Co-Founder
Moms Clean Air Force