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Air Toxics ‘Completion’ Suit Faults EPA Reliance On ‘Surrogate’ Pollutants
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In a September 2 statement of non-binding issues related to a lawsuit over a Clean Air Act requirement that the agency complete regulation of 90 percent of emissions of certain “persistent” and “bioaccumulative” hazardous air pollutants (HAPs), environmentalists are targeting what they say is EPA’s unlawful use of “surrogate” pollutants to satisfy the requirement.  The advocates are hoping to force new direct regulation of the air toxics.


Section 112(c)(6) of the Clean Air Act required EPA to by November 15, 1995, list industrial sources for regulation accounting for 90 percent of seven HAPs: alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8- tetrachlorodibenzo-p-dioxin, and on June 3 EPA issued its “completion finding” saying the agency has achieved this through various rules already in place, some of them employing reduction of surrogate pollutants in lieu of direct limits on the seven HAPs. 


Environmentalists sued, claiming that the finding should have gone through the regular public comment process as other rules do.  They also say their suit will test whether “EPA has not supported its surrogacy claims with data or analysis, either in the record for the present determination or in the prior rules that EPA now claims established the surrogate standards.” They further allege that the completion finding is unlawful “because EPA refused to entertain and respond to comments questioning the lawfulness, reasonableness, and soundness of its proposed surrogacy determinations.”

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