Court ruling tosses EPA exemptions

• By AMY WOLD
• Advocate staff writer
• Published: Dec 20, 2008 - Page: 15A - UPDATED: 12:05 a.m.

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A federal court in a decision released Friday threw out a final rule from the U.S. Environmental Protection Agency that provided exemptions from the Clean Air Act for industrial facilities going through startup, shutdown or malfunction.

The U.S. Court of Appeals for the District of Columbia Circuit issued the decision on a lawsuit filed by Earthjustice on behalf of several environmental groups including the Sierra Club, Environmental Integrity Project, Coalition for a Safe Environment, Friends of Hudson and the Louisiana Environmental Action Network.

Jim Pew, one of the attorneys from Earthjustice who argued the case in September, said the rule in question had been in place since 1994.

However, at the time it was added to federal regulations, there were also a number of safeguards added as well, such as requiring facilities to turn in a plan of action they would follow during startups, shutdowns or malfunctions.

These “safeguards” started to get stripped away in 2002, including much of the ability for the public to get involved or monitor how facilities were doing in following their own plans, he said.

“In a practical manner it was unenforceable,” Pew said.

Pew said local environmental groups around the country say the exemption in question got abused by facilities, some of which were operating with “malfunctions” most of the time without penalty.

“When the big flares at one of the local facilities go off signaling a malfunction, it can cause significant air quality problems in the surrounding communities,” Marylee Orr, executive director of Louisiana Environmental Action Network, said in a news release.

“This court win will make a big difference for people in these neighborhoods.”

Henry Graham, director of environmental and legal affairs with the Louisiana Chemical Association, said it’s unclear what effect the ruling could have on industrial operations.

The effect could be different for facilities based on what kinds of processes they use and how they’re operating now, he said.

“It will effect companies different ways depending on what they have in their permits,” he said.

In addition, it’s unclear whether EPA will try to formulate new rules to replace those thrown out by the court, he said.