Supreme Court Will Not Reopen Case That Closed Air Pollution Loophole

WASHINGTON, DC, March 8, 2010 (ENS) – The Supreme Court today sided with environmental advocates by declining to review a lower court ruling that forbid the U.S. EPA to exempt industrial polluters from regular emissions standards during “startup, shutdown and malfunction” events.

Environmental groups that brought the original lawsuit were pleased with the Supreme Court’s decision not to grant review in the American Chemistry Council v. Sierra Club case, because they had succeeded in closing the exemption loophole with a win in federal appeals court in December 2008.

“We’re pleased that the court has finally put an end to this litigation,” said attorney Jim Pew with the public interest law firm Earthjustice. “This air pollution exemption has caused terrible suffering in thousands of communities. No one disputes that it’s illegal.”

In some cases, the environmental groups said today in a statement, industrial facilities have evaded federal emissions standards by using the startup, shutdown and malfunction exemption during normal operations.

Refinery in Corpus Christi, Texas (Photo by Maria-Cristina)

Following the December 2008 decision by the U.S. Court of Appeals for the DC Circuit, the EPA did not seek a Supreme Court review, but the American Chemistry Council, the American Forest and Paper Association, the American Petroleum Institute, and the National Petrochemical & Refiners Association, which had intervened in the case, did petition the Supreme Court for review.

“The court made the right decision; the Clean Air Act requires continued compliance with its standards,” said Jane Williams, who chairs the Sierra Club’s Air Toxics Task Force. “This loophole has been a get-out-of-jail free card for far too long for dirty industries.”

“Under the Obama administration, EPA has already committed to rethink this loophole, and we look forward to working with the agency to bring relief to overburdened communities as soon as possible,” said Pew.

The groups that brought the case – Sierra Club, Environmental Integrity Project, Louisiana Environmental Action Network, Coalition for a Safe Environment and Friends of Hudson – said today that they acted to protect their members and others who live in communities that host industrial facilities.

The loophole’s potential for abuse was on display on September 25, 2009, when a fire was caused by a malfunction at the Tesoro Energy Corp’s refinery in Wilmington, California which produces gasoline, jet fuel, diesel fuels, petroleum coke and fuel oil.

The fire burned for more than six hours, emitting fumes into the atmosphere.

Jesse Marquez, executive director for the Coalition for a Safe Environment, lives three miles from the Tesoro refinery. He was at the scene of the incident and said the malfunction began at 6 am and for hours a noxious smell of crude oil and diesel fuel fumes filled the air.

Tesoro notified the elementary school a mile away but did not inform residents. Not only did residents contend with poisonous emissions, the fire left soot on peoples’ cars and homes. The refinery eventually paid for the cost of cleaning homes and cars but did not reveal what public health risks occurred as a result of exposure to these pollutants.

Along with the Tesoro refinery, Wilmington hosts ConocoPhillips and Valero refineries.

“Almost every week a refinery has a malfunction and equipment break down and almost every year there is a fire,” said Marquez. “Each of these refineries exposes our children to hundreds of tons of toxic pollutants every year. I am pleased with the Supreme Court’s decision because we need strict rules to regulate refineries and they must be held accountable when their violations of emission standards put the public in harm’s way.”

“Startups, shutdowns and malfunctions create some of the highest volumes and worst toxic air pollution released by large industrial factories, and nearby communities suffer the horrible impacts of the chemicals dumped into their air supply,” said Neil Carman, clean air director for the Sierra Club’s Lone Star Chapter and a former Texas state refinery inspector.

With more than 250 industrial sites, Texas hosts the nation’s largest number of refineries, chemical and petrochemical plants. The state is one of a few that tracks pollutants released during startup, shutdown, and malfunction periods. According to Texas state records, 30 facilities emitted more than 45 million pounds of toxics in one year during these off-the-books periods.

In neighboring Louisiana, some 20 million pounds of air toxics are pumped into the air each year. “This is not about numbers on a page,” said Marylee Orr, executive director of Louisiana Environmental Action Network. “This is about making the air healthy to breathe, communities quality of life better and that will help the economy. We thank the Supreme Court for protecting people’s health.”

In their petition to the Supreme Court to review the DC Circuit’s decision, the industry groups argued that EPA’s general-duty requirement during SSM [startup, shutdown and malfunction] events is a lawful interpretation of the Clean Air Act and a reasonable way to reconcile the need to minimize emissions with the inherent technological limitations during SSM events.

The exemption is necessary because it is sometimes “impossible for businesses to meet the otherwise applicable emission standard,” the industry groups argued.

Susan Falzon of Friends of Hudson represents residents living near or downwind the Lafarge cement kiln plant in Ravena, New York. She said residents have been subjected to regular startup, shutdown and malfunction emissions incidents that have gone on for years with no enforcement actions taken.

“The incidents are largely unpublicized and therefore the general public is unaware of this danger,” Falzon said. “We are fortunate that there have been no major mishaps but at the same time we have been exposed to a slow and steady series of so-called minor incidents. Closing this loophole is a victory for our communities.”

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