Top EPA official gets second chance to deregulate toxic air pollution

William Wehrum oversaw the drafting of failed rulemaking during Bush administration.

CREDIT: Visions of America/UIG via Getty Images
CREDIT: Visions of America/UIG via Getty Images

It’s not often that a controversial executive branch nominee gets a second chance. William Wehrum, the current assistant administrator of the Environmental Protection Agency’s (EPA) Office of Air and Radiation, failed to win Senate confirmation 10 years ago to serve in the same position after getting accused of being a “doctrinal hit man” for the George W. Bush administration’s attacks on clean air protections.

But under President Trump, rejected anti-environment nominees from the Bush administration are viewed as prime candidates for environmental oversight positions. In the case of Wehrum, he is taking advantage of his second chance. On Thursday, the EPA issued a guidance memorandum drafted by Wehrum’s office that significantly relaxes regulations governing the release of extremely toxic mercury, arsenic, and lead pollution by industrial facilities.

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During the Bush administration, when Wehrum was serving as acting assistant administrator for the same EPA office, the agency published a rulemaking, instead of a guidance memo, that would have eliminated the “once in, always in” policy for extremely hazardous air pollutants that are typically emitted from industrial facilities like chemical and petroleum plants. Following criticism by states and environmental groups, the EPA’s attempts to weaken the policy in 2007 failed. Since then, the EPA decided not to touch the issue — until now.

This time, with the backing of a president who wants to eliminate as many environmental regulations as possible and an extremely friendly Congress, Wehrum may finally succeed in getting the changes implemented.

“For toxic polluters, it’s a belated Christmas present,” Sanjay Narayan, managing attorney in the Sierra Club’s Environmental Law Program, told ThinkProgress.

Wehrum never was able to get “acting” removed from his title 10 years ago. The Bush administration withdrew his nomination after he failed to earn support of the 60 senators needed for confirmation at the time. This time around, Wehrum needed only a majority of senators to approve his nomination due to Senate rule changes. And he easily won confirmation to the important post last November.

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During the fight over Wehrum’s nomination in Bush’s second term, Sen. Jim Jeffords (I-VT) summarized Senate critics’ opposition to Wehrum’s nomination, saying his “disdain for the Clean Air Act is alarming.” The New York Times editorialized against Wehrum’s nomination at the time, calling him a “doctrinal hit man” for Bush EPA attacks on clean air protections.

This rerun of a fight over an important clean air policy features the same industry-friendly regulator but also the same environmental opponents. In 2007, the Natural Resources Defense Council (NRDC) called the Bush administration’s rulemaking proposal “the most sweeping attack on air toxics protections ever undertaken by EPA under any administration.”

After the EPA released the Wehrum memo on Thursday, the NRDC used similar language in response to the agency’s move to relax the rule. “This is among the most dangerous actions that the Trump EPA has taken yet against public health. Rolling back longstanding protections to allow the greatest increase in hazardous air pollutants in our nation’s history is unconscionable,” John Walke, clean air director for the NRDC, said Thursday in a statement.

“Trump and Pruitt are essentially creating a massive loophole that will result in huge amounts of toxic mercury, arsenic, and lead being poured into the air we breathe, meaning this change is a threat to anyone who breathes and a benefit only to dangerous corporate polluters,” Sierra Club Global Climate Policy Director John Coequyt said in a statement.

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The policy name of “once in, always in” may sound odd, but it actually means what it says. The 1995 policy subjected industrial facilities to strict air toxic rules for their lifetime, even if they reduced and kept emissions below legal levels. In other words, once a facility fell into the category of a major source polluter, it would always be in the category. The EPA adopted the policy in the 1990s on the theory that compliance with a rule should not become an exemption from it.

The new guidance “will reduce regulatory burden for industries and the states,” Wehrum said Thursday in a news release. The EPA also emphasized that the action is an important step in furthering President Trump’s “regulatory reform agenda while providing a meaningful incentive for investment” in hazardous air pollutants-reduction activities and technologies.

Polluting industries and congressional Republicans disliked the rule from the start — and never gave up on getting it overturned. Earlier this month, U.S. Sens. John Barrasso (R-WY), chairman of the Senate Environment and Public Works Committee, and Shelley Moore Capito (R-WV) sent a letter to EPA Administrator Scott Pruitt asking him to withdraw the “once-in-always-in” policy.

Powerful lobbying groups like the National Association of Manufacturers and the American Petroleum Institute had fought for years to eliminate the policy. Prior to his confirmation by the Republican-controlled Senate in November, Wehrum worked as a lawyer representing fossil fuel and chemical companies.

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With the new guidance, sources of hazardous air pollutants previously classified as “major sources” may be reclassified as “area sources” when the facility limits its potential to emit below major source thresholds.

What’s the difference between “major sources” and “area sources”? Major sources are defined as sources that emit 10 tons per year of any of the listed toxic air pollutants, or 25 tons per year of a mixture of air toxics. These major sources are subject to strict oversight. Area sources consist of smaller-size facilities that release lesser quantities of toxic pollutants into the air and are subject to less strict pollution control standards.

Wehrum’s memo found that “a plain language reading” of the Clean Air Act must allow facilities to be reclassified as area sources once their potential to emit hazardous air pollutants falls below the levels that define major sources. The EPA said it will soon publish a Federal Register notice to take comment on adding regulatory text that will reflect Wehrum’s plain language reading of the statute.

The NRDC’s Walke said his group will fight “this terrible decision to unleash toxic pollutants with every available tool.”