U.S. Supreme Court Denies Certiorari to EPA's "Start Up, Shut Down, Malfunction" Rule

Today, the U.S. Supreme Court announced that it had denied certiorari to the American Chemistry Council in ACC’s effort to obtain Supreme Court review of the U.S. Court of Appeals for the D.C. Circuit’s decision in Sierra Club v. American Chemistry Council et al. See, “Court Overturns 15-Year Old Pollution Exemption for Industries,” posted December 24, 2008.

In 1994, during the Clinton Administration, the EPA promulgated a rule that permits industrial operations that are starting up, shutting down or malfunctioning (“SSM events”) to emit more toxins into the air than is normally allowed.  In a 2 to 1 decision, the U.S. Court of Appeals for the District of Columbia Circuit struck down that exemption holding that it conflicts with the clear language of section 112(h) of the Clean Air Act.

The Supreme Court’s denial of certiorari effectively puts an end to the litigation.  If industry wants to have the rule reinstated, a legislative change in the Clean Air Act will be required.

Court Overturns 15-Year Old Pollution Exemption for Industries