EPA Exemption Declared Unlawful

On Dec. 19, a federal court struck down EPA regulations that allowed refiners, chemical plants, and other industrial facilities to release large amounts of hazardous air pollution during start-ups, shutdowns, and malfunctions (SSMs).

Starting in 1994, EPA had allowed industrial plants to exceed their permitted pollution limits during SSMs. But in 2002 and 2003, EPA made changes to those regulations that alarmed a coalition of national and local environmental groups.

Those groups challenged these changes in court. They argued that the provisions created an illegal loophole in the Clean Air Act, allowing some facilities to evade emission limits by claiming that they are undergoing SSMs during much of their normal operating time. "It's a scam," says James S. Pew, the Earthjustice attorney who argued the case for the environmental groups.

In a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia Circuit found that the SSM exemption violates the Clean Air Act's requirement that some sort of limit on a facility's emissions of hazardous air pollutants must apply continuously.

"We are disappointed that the court did not rule in favor of EPA," says agency spokesman Jonathan Shradar. The federal government, he says, "is reviewing the opinion and will determine an appropriate course of action."

The American Chemistry Council, a trade association of chemical manufacturers, joined EPA in defending the SSM provisions. The attorney who represented ACC did not return C&EN's calls for comment.