US refiners, chemical makers lose emissions exemption

09 March 2010 22:43  [Source: ICIS news]

WASHINGTON (ICIS news)--US chemical sector officials on Tuesday said they were disappointed in a Supreme Court ruling that effectively reversed a 35-year-old policy that exempted chemical makers and refiners from emissions rules during plant malfunctions.

The American Chemistry Council (ACC) added that it hopes to work with the Environmental Protection Agency (EPA) to establish new standards for plant emissions during scheduled or unexpected interruptions in production.

The US high court declined to hear an appeal filed by the council of a December 2008 decision by the US Court of Appeals for the District of Columbia.

In that 2008 decision, the appellate court ruled that the longstanding practice of the EPA and some state environmental agencies of waiving strict emissions requirements for plants during start-ups, shutdowns and malfunctions (SSM) was illegal and in violation of the Clean Air Act.

In the 1970s the EPA had determined that excess emissions during plant start-ups, shutdowns or malfunctions were not violations of the Clean Air Act.

Although production facilities were exempted from the usual emissions compliance criteria during SSM events, the EPA required that plant operators minimise those non-routine emissions to the greatest extent possible.

In a series of petitions and lawsuits launched in 2002, the Sierra Club and other environmental groups challenged the EPA exemption, arguing that the agency’s decision to waive Clean Air Act requirements during SSM events “is contrary to the plain text of the statute and arbitrary and capricious in any event”.

The EPA argued that the SSM exemption was a lawful interpretation of the law and a reasonable way to reconcile the need to minimise emissions and the inherent technical difficulties in controlling emissions during start-ups, shutdowns and accidents or other malfunctions.

But the appellate court ruled against the EPA and the American Chemistry Council (which entered the case as an intervenor), saying that the agency was obliged to implement “the unambiguously expressed intent of Congress” in the Clean Air Act.

“Only if the statute is silent or ambiguous on a particular issue may the court defer to the agency’s reasonable interpretation” of the law, the appellate judges said.

In this case, said the appellate decision, the EPA did not have authority to alter “the plain text of the Clean Air Act”.

The American Chemistry Council asked the Supreme Court to review the appellate court decision, but the high court declined to do so, meaning that the appellate ruling stands and the EPA exemption for emissions standards during start-ups, shutdowns and malfunctions is ended.

The council said that while it was disappointed that it did not get a Supreme Court review of the case, it will work with EPA officials “to help them understand the inherent limitations of control technologies, equipment and processes” during non-routine plant operations.

The trade group indicated that it hopes the agency may find some other means within the Clean Air Act requirements to give producers some leeway during critical operations.

“We hope they will consider all of the options under the Clean Air Act in establishing standards that are reasonable during the start-up, shutdown and unanticipated malfunction of equipment,” the council said.

However, the environmental legal group Earth Justice noted that the EPA “has already committed to rethink this loophole”, meaning the now disallowed exemption.

Earth Justice provided the attorneys who represented the Sierra Club in its suits and petitions against the EPA in the case.

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By: Joe Kamalick
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