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EPA Offers Exemptions from Clean Air Act Standards...Can It Do That?

The Clean Air Act generated some rare headlines at the very end of March, after the U.S. Environmental Protection Agency (EPA) announced the availability of “presidential exemptions” from certain air quality standards.


If you missed it, here are some examples:


Coverage of the announcement characterized EPA’s move in dire tones, calling it “a gold-plated, ‘get-out-of-permitting free’ card,” and “an invitation to pollute.” Could the EPA, which writes air quality standards and enforces both them and the Clean Air Act, really allow this?  What is going on?  We decided to take a look. 


Here’s what we found…


Earlier in March, EPA did in fact say that sources subject to any one of nine National Emission Standards for Hazardous Air Pollutants (called NESHAPs) promulgated in 2024 by the previous administration could, until March 25, request exemptions from the standards while the current administration reconsiders them. 


Specifically, the nine NESHAPs apply to sources in these industries:


  • Coal- and oil-fired electric generating units;

  • Synthetic organic chemical manufacturing;

  • Sterilization facilities that use ethylene oxide;

  • Rubber tire manufacturing;

  • Primary copper smelting;

  • Lime manufacturing

  • Taconite ore processing;

  • Integrated iron and steel manufacturing; and (last but not least - especially locally)

  • Coke ovens


EPA is offering the exemptions under the authority granted by section 112(i)(4) of the Clean Air Act. Are exemptions like this legal? The EPA has skirted the requirements of the Act many times before, so it’s a question worth considering. 


Let’s take a look at Section 112(i)(4) itself:


The President may exempt any stationary source from compliance with any standard or limitation under this section for a period of not more than 2 years if the President determines that the technology to implement such standard is not available and that it is in the national security interests of the United States to do so.  An exemption under this paragraph may be extended for 1 or more additional periods, each period not to exceed 2 years.  The President shall report to Congress with respect to each exemption (or extension thereof) made under this paragraph.


There are three key limitations in the language of the statute that the news coverage glossed over...


First, exemptions are available only from a particular standard promulgated under section 112 of the Clean Air Act, which deals specifically with NESHAPs – the president is not empowered to grant general exemptions from Clean Air Act requirements or even exemptions from other categories of emission standards or limitations.


Second, exemptions are available only for individual stationary sources, not entire industries. 


Third, the president can grant an exemption from a NESHAP only if he determines that “the technology to implement [the] standard is unavailable” AND that the exemption “is in the national security interests of the United States.”


Little bit of background: Section 112(i)(4) was added to the Clean Air Act in 1990. Further, in the rulemaking for one of the nine NESHAPs from which EPA is offering exemptions, then-President Biden’s EPA acknowledged that sources could seek exemptions from the standard under section 112(i)(4). 


“The fact that the Act gives the President the power to issue exemptions like those EPA offered in March should never have come as a surprise,” GASP senior staff attorney John Baillie said.


The Environmental Defense Fund obtained a list of all of the sources nationwide that have requested presidential exemptions from the nine NESHAPs through a Freedom of Information Act request and shared it with us. 


There are 532 such sources, including nine in western Pennsylvania:


  • Cosmed Group in Erie and American Contract Systems in Zelienople are requesting exemptions from the NESHAPs for sterilization facilities that use ethylene oxide;

  • The Seward Power Plant in Indiana County, the Colver Power Project in Cambria County, Ebensburg Power in Cambria County, and the Scrubgrass Power Plant in Venango County are requesting exemptions from the “MATS Rule” for coal- and oil-fired electric generating units;

  • U.S. Steel’s Mon Valley Works is requesting an exemption from the NESHAPs for integrated iron and steel manufacturing; and

  • U.S. Steel’s Clairton Works and Cleveland Cliffs’ Monessen Coke Plant are requesting exemptions from the NESHAPs for Coke Ovens.


Stay tuned, folks. This blog is merely part one. We’ll dig into the requests made by these nine sources more deeply in future blogs and share what our investigations find.

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