Front Page > Issues > 2004 > January

Enviros challenge Bush loophole

Suit filed to force Bush administration to rewrite EPA rules

Will Portlanders be breathing toxic waste dredged from Portland Harbor and the Willamette River? They won’t if a group of environmental organizations succeed in closing a loophole in Environmental Protection Agency rules. The Sierra Club, Blue Ridge Environmental Defense League, and Concerned Citizens for Nuclear Safety filed suit with the U.S. District Court of Appeals on Dec. 5 to amend new language added to the Clean Air Act by the Bush Administration that would threaten public health and safety during clean up of Superfund and other toxic waste sites.

“Communities ultimately pay the price for toxic air pollution with their health and safety,” stated Kendra Kimbirauskas, an organizer with the Sierra Club’s Portland office. “On behalf of its polluter friends, the Bush Administration has decided to jeopardize the health of Oregonians and all Americans.”

Under old rules, the EPA listed toxic waste sites — sometimes called “site remediation” — as major sources of hazardous air pollution that would be regulated under the Clean Air Act’s protective air toxics provisions. Two months ago, the Bush Administration issued new rules exempting from Clean Air Act emission standards all toxic waste cleanups conducted under Superfund law or state programs run under the Resource Conservation and Recovery Act. The agency claimed Superfund law and the requires federal and state agencies to establish requirements for cleanups on a case-by-case basis. Environmentalists state that neither of the two laws require air emission standards for cleanups nor that if established, such requirements will be equivalent to standards set by the Clean Air Act’s air toxics provisions.

For Portlanders, that means the cleanup being planned for the Portland Harbor and the Willamette River in the near future could take place without strict standards to protect residents from airborne toxics. Such airborne contaminants could include naphthalene and dibenzofuran. Both substances are found in sediments in the river bottom and both easily volatize into the air. Naphthalene and dibenzofuran are both classified as “hazardous air pollutants” under the Clean Air Act. Other substances that could become air pollutants include arsenic, mercury, various pesticides, petroleum byproducts and semi-volatile organic compounds.

“We have very good ways of controlling these air pollutants — the bad news is the Bush Administration has decided to exempt all federal sites from these law,” states Jim Pew, attorney for Earthjustice. “[This is] all too typical of the Bush Administration’s environmental approach — let’s bury — bury gigantic loopholes rather than taking the public head on.”

The suit filed by the environmental groups petitions the court “for review of the final action (including the promulgation of regulations)” taken by the Bush Administration on Oct. 8, 2003 entitled “National Emission Standards for Hazardous Air Pollutants: Site Remediation; Final Rule.” Pew estimates the court will set a date for both parties to argue their case within the next few months. Arguments usually take place within less than a year following filing of the suit and a decision should come within 18 months of filing.

The loophole that appeared in the new EPA rules is not new. The revised language has been sought for many years by industry trade groups like the American Chemistry Council and petroleum refinery groups. The Bush Administration, however, has been the first willing to openly adopt such wholesale gutting of environmental regulations at the behest of industry.

For more information about this matter, contact the Sierra Club’s Portland office at 503-243-6656 or visit the Club’s website at www.sierraclub.org.

Dave Mazza is editor of The Portland Alliance.