"It is a cornerstone of public health protection that sources of toxic air pollution must control their emissions at all times," said Earthjustice attorney James Pew. "But the Bush Administration wants to keep the public from knowing if they actually do so."
The case arises from EPA's failure to implement a settlement reached in 2002.
"Last year, EPA tried to carve an enormous loophole in polluters' obligation to comply with emission standards," said Pew. "The agency wrote new rules that said, effectively, a source can ignore its emission standards whenever it's in a period of self-defined 'malfunction.' The new rule, essentially, was 'comply with emission standards except when you choose not to do so'."
"The effect of that loophole on neighborhoods and communities would have been devastating," said Marti Sinclair, chair of Sierra Club's Environmental Quality Strategy Team. "During the malfunction of process or pollution control equipment, pollution rates can increase one hundred fold or more, and some plants have operated in 'malfunction' mode as much as twenty-five percent of the time. The result is that tons upon tons of excess toxic pollution go completely uncontrolled."
"We challenged EPA's loophole in court, and the agency agreed to fix it by requiring polluters to minimize emissions at all times and by ensuring that their plans and procedures for dealing with 'malfunctions' would be available for public review," Sinclair added. "But EPA chose not to implement the settlement. Instead of ensuring that malfunction plans would be available to the public, as it had promised, the agency put up new barriers to keep this information secret."
"The agency's failure to keep its word left us no choice but to go back to court," said Sinclair.
Also affected by EPA's failure to implement the settlement agreement is a separate deal regarding the deadline for permit applications for more than 80,000 major sources of toxic pollution that the agency has, so far, completely failed to regulate. EPA's failure to regulate these sources by the Clean Air Act's November 15, 2000 deadline had triggered a separate permit process under which each individual source had to apply for a special permit and individualized emission standards from its State permitting authority. The settlement agreement had allowed additional time for EPA to complete its standards before these permits were due, but that issue will now go before the court as well.
The suit is in the United States Court of Appeals for the District of Columbia Circuit.