D.C. Circuit Overturns EPA’s Pollution Exemption for Industries

     (CN) – The D.C. Circuit agreed with environmentalists that refineries and other industrial sites should not be exempt from normal emissions standards during startups, shutdowns and malfunctions. The Sierra Club claimed the Bush administration’s rules – issued in 2002, 2003 and 2006 – progressively weakened regulation of hazardous emissions at air pollution sources.




     Although the Environmental Protection Agency first exempted regulation during such periods in 1994, the more recent rules gradually eliminated permitting and planning requirements that had qualified the exemption.
     The D.C. Circuit considered three consolidated Sierra Club lawsuits in ruling that the rules were inconsistent with the “plain text” of the Clean Air Act.
     The court explained that the EPA, in essentially eliminating safeguards during these periods, had substantially altered the regulatory scheme. As a result, the exemption challenge was “constructively reopened,” although the lawsuits had been filed long past the 60-day deadline after the exemption was first established.
     The court also concluded that the exemption defied congressional intent to provide continuous regulation of hazardous air pollution, spelled out in 1990 amendments to the Act that confined agency discretion on control technology standards, due to frustration at the agency’s slow pace.
     Judge Rogers quoted the EPA, which said that retaining a plan for emission control during startups, shutdowns and malfunctions acts as a “reasonable bridge” between the challenge of compliance during such periods and “a blanket exemption from emission limits.”
     Judge Randolph disagreed, saying environmentalists must take a different tack since they should not be allowed to challenge the exemption so long after its 1994 issuance.
     The D.C. Circuit vacated the EPA exemption.

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