The Supreme Court declined today to review a lower court's ruling prohibiting U.S. EPA from suspending normal emissions standards for major pollution sources during "startup, shutdown and malfunction" (SSM) periods.
Environmental groups praised the court's decision not to grant review in American Chemistry Council v. Sierra Club, saying the policy struck down in 2008 had created a "loophole" for polluters. In some cases, industrial facilities have evaded federal emissions restrictions by using the SSM exemption during times of normal operation, the groups said in a statement today.
"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, a former Texas state refinery inspector who is now air director at the Sierra Club's Texas chapter.
The exemption was tossed out in 2008 by the U.S. Court of Appeals for the D.C. Circuit in response to a lawsuit filed by a coalition of environmental advocacy groups. A three-judge panel ruled, 2-1, that the Clean Air Act did not allow the agency "to relax emission standards on a temporal basis," as Judge Judith Rogers wrote for the majority.
"Congress was explicit when and under what circumstances it wished to allow for such discretion," she wrote.
The dissent came from Judge A. Raymond Randolph, who argued that the lawsuit was not timely and that the majority's decision relied on arguments not presented by the plaintiffs in the case (E&ENews PM, Dec. 19, 2008).
The SSM exemption was originally implemented during Bill Clinton's presidency through the Clean Air Act's Title V permitting program. George W. Bush's administration tweaked the exemption in 2003, allowing industrial facilities to implement SSM protocols without formally submitting them for agency review as part of their Title V permits.
Since the D.C. Circuit's decision to strike the exemption from the general provisions of the Clean Air Act, the agency has been reviewing about 100 individual air toxics rules to bring them into compliance. Environmental groups expect the Obama administration to be tough on implementation of the court ruling, Earthjustice attorney Jim Pew said.
"The Supreme Court's decision doesn't change anything, but it finally brings this case to an end," he said. "We obviously like the conclusion, which is that this exemption is illegal and has to be eliminated."
Several industry groups appealed the D.C. Circuit's decision to the Supreme Court, joined in a friend-of-the-court brief by the U.S. Chamber of Commerce. The groups, which included the American Petroleum Institute and the American Forest & Paper Association, argued that the decision "threatens regulated industries and businesses with substantial liability, and the economy with unnecessary disruption."
The exemption is necessary because it is sometimes "impossible for businesses to meet the otherwise applicable emission standard," the industry groups wrote in their petition for review. "EPA promulgated this rule because it recognized that startup, shutdown, and malfunction periods present unique and disparate challenges."