The U.S. Court of Appeals for the District of Columbia Circuit rejected a federal rule that allowed pollution limits at refineries and other indstrial sites to exceed federal limits during startup, shutdown and malfunction.
The decision was a significant win for environmentalists, but highlights how slow environmental action can be at the federal level. The Environmental Protection Agency created the exemption in 1994, and is just now being forced to rewrite the regulation, following a suit by the public interest law firm Earthjustice.
Earthjustice said some facilities exceeded pollution limits during normal operation under
the guise of being in startup, shutdown or malfunction mode. During these and legitimate non-normal operation periods, toxic emissions skyrocketed, Earthjustice argued.
Rich Alonso, a former EPA enforcement official who now works for Brace & Giuliani LLP´s environmental strategies group, said the forced rule change will only increase paperwork and administrative burdens. He said the refineries he represents have reduced emissions during those those atypical events over the last five to ten years.
How reliable are environmental and industry groups in their opposing claims? Please share your comments.
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The interesting thing about this case is that although the decision was 2 to 1, there was no dissent as to whether the exemption for start-up, shut-down and malfunctions violated the Clean Air Act. EPA defended their actions on procedural grounds rather than substantive. See http://taberlaw.wordpress.com for more legal analysis of the case.
If exemptions are needed for industrial facilities, then the regulation must be written such that it does not run afoul of sec. 112(h) of the Clean Air Act. Had industry kept its nose clean, and not tried to operate their facilities in “start up” mode for an extended period of time, this case may never had gotten any traction.