Posted by: Steven M. Taber | December 24, 2008

Court Overturns 15-Year Old Pollution Exemption for Industries

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.

As Judge Rogers, writing for the majority stated in the very beginning of the decision:

Because the general duty that applies during SSM events is inconsistent with the plaint text of section 112 of the Clean Air Act (“CAA”), even accepting that “continuous” for purposes of the definition of “emission standards” under CAA section 302(k) does not mean unchanging, the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously.

This ruling is somewhat surprising for several reasons.  First, it is almost a minor miracle that the court got to the merits at all, since the D.C. Circuit is very fond of getting rid of Petitions for Review, such as this one, on overly technical grounds of jurisdiction, ripeness, and standing.  In this case, the biggest obstacle for the Sierra Club was not whether the SSM exemption violated the CAA, but whether the court had jurisdiction.  The CAA requires that all petitions for review be filed within 60 days of the promulgation of the rule.  Since the SSM exemption was originally promulgated in 1994, the EPA sought to bounce the matter on that basis without any investigation into whether the SSM exemption was actually in violation of the CAA.Luckily, there is a rule that states that if an agency revises that amount to a “significant change” then the rule is “reopened” and can be challenged anew.  It was this issue that garnered more ink both from the majority opinion and the dissent than the actual issue of whether SSM violated CAA.  The majority found that the EPA had, indeed, reopened the SSM rule by making significant changes in 2006.

The procedural hurdle that the Sierra Club had to jump over is the fact that courts, pursuant to the U.S. Supreme Court case of Chevron USA Inc. v. NRDC, must give deference to the interpretation of statutes by agencies charged with their enforcement.  The EPA argued that because it is charged with the enforcement of the CAA, that the court should defer to its interpretation that the SSM exemption does not violate the CAA.  The court found otherwise.  It rightly pointed out that Chevron only comes into play when the statute beign interpreted is “silent or ambiguous on a particular issue.”  Since, in this case, the court found the CAA not to be ambiguous, Chevron did not apply and the court concluded that the SSM exemption violated the CAA.

The actual decision that the SSM exemption violated the CAA was anticlimatic, relatively devoid of controversy.  Although Judge Randolph filed a dissenting opinion, it concentrated primarily on the “reopening doctrine.”  Judge Randolph also thought that the majority “put words” in the mouths of the Sierra Club and found that the SSM exemption violated the CAA on grounds not articulated by the Sierra Club in their briefs.  The dissent, however, did not state that the grounds stated by the majority were not correct or that the SSM exemption did not, in fact, violate the CAA.

Regardless of how they got there, as stated by the press and other media, the ruling will affect sources of air pollution across the country, including oil refineries, chemical plants and petrochemical plants.  Those plants regarded the SSM exemption as essential to their operations.  However, James Pew, who argued the case stated that those industrial facilities routinely violated federal air standards under the guise of “malfunctions.” In the end, this another issue that EPA Administrator-designate Lisa Jackson will have to deal with in the upcoming months.


  1. […] space of two weeks, the D.C. Circuit has reinstated CAIR, and overturned the SSM exemption (see, “Court Overturns 15-Year Old Pollution Exemption for Industries”).  In addition, the EPA Administrator proclaimed that CO2 emissions cannot be limited in Clean Air […]

  2. […] Thus, in the past month, the EPA has been told at least twice by two different courts that it must stick to the language contained in the statutes that it has been authorized to enforce, and not make questionable interpretations.  See, “Court Overturns 15-year Pollution Exemption.” […]

  3. […] Circuit Overturns EPA Rule Exempting Pesticides from NPDES Permitting” (posted 01/08/2009); “Court Overturns 15-Year Old Pollution exemption for Industries” (posted […]

  4. […] 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, […]

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