WASHINGTON (CN) - Environmental groups challenging permits for a new waste incinerator in Puerto Rico were shut down after attempting to challenge the underlying federal regulation more than three decades too late, the D.C. Circuit ruled.
The March 4 ruling states that the groups, led by the Sierra Club, had no grounds to challenge a 1980 rule promulgated by the Environmental Protection Agency to implement sections of the Clean Air Act.
"For whatever reason, no one challenged this regulation back then, and Sierra Club cannot do so now," Judge Robert Wilkins wrote for the three-judge panel.
In 2011 Energy Answers Arecibo LLC tried to built a waste incinerator on the island, which was forecast to emit 0.31 tons per year of lead, well below the yearly 100-ton limit for strict regulation under the Clean Air Act.
The company applied in 2011 for a permit from the Environmental Protection Agency.
The EPA later that year designated part of Arecibo a "nonattainment" area for lead due to pollution from a local battery recycling facility, which forced the company to seek public notice for its permit. Nonattainment areas are those considered to have poor air quality due to pollutants.
The permit was preliminarily granted in June 2013, amid public concern over the proposed lead levels.
A month later, five environmental groups led by the Sierra Club of Puerto Rico challenged the permit, but they were denied by the EPA, which argued that lead (considered a nonattainment pollutant) was exempt from federal regulation and that Puerto Rico itself was responsible for regulating the new incinerator. A final permit was granted in late 2014.
However, the environmental groups were not prepared to give up.
In July 2014 they sought a review of a 1980 regulation under the Clean Air Act, arguing that a loophole in the law's language would allow Energy Answers to build an incinerator that would emit more lead per year than a battery recycling facility on the island, which caused the nonattainment problem in the first place.
The 1980 regulations, which the Sierra Club said violated the Clean Air Act, restrict facilities from emitting more than 100 tons of lead per year. Only facilities that emit more than that threshold are required to install technology to limit emissions and secure emissions offsets.
The March 4 ruling denied the groups' second petition, saying that the challenge was past due by about 36 years, since the Clean Air Act set a 60-day period to challenge regulations.
"There is a lead problem in Arecibo, Puerto Rico," Wilkins admitted in the ruling. "Unfortunately for petitioners, their challenge comes too late."
The Sierra Club had argued that its grounds to challenge the 1980 regulations arose in May 2014, when Energy Answers' permit was officially granted. Because its challenge to the 1980 regulation was within 60 days of that permit, it passed the statute of limitations, the groups argued.
The circuit court disagreed, stating that the Sierra Club's reliance on similar rulings by the court in allowing groups to file regulatory challenges after they "ripened" following a certain event. "We have rejected attempts to manufacture ripeness," Wilkins wrote.
Wilkins allowed that the Sierra Club may have had a case in 2011, when Arecibo was designated for nonattainment for lead, but added that its 2014 challenge would not have passed the 60-day test under that litmus either, however.
As it stands, a permit is no cause to allow a legal challenge of the 1980 regulation, Wilkins wrote. "If a party could trigger a 60-day statute of limitations period simply because a regulation was being enforced against it for the first time, [then] our concerns about preserving the consequences of failing to bring a challenge within 60 days of a regulation's promulgation would be meaningless."The Arecibo area is considered heavily polluted. The Centers for Disease Control and Prevention has stated there is no safe level of lead exposure.
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