A coalition of national and community environmental groups has sued the U.S. Environmental Protection Agency to overturn a new rule that allegedly allows refineries and other industrial plants to emit higher levels of noxious chemicals when starting up, shutting down and experiencing equipment malfunctions, without informing area residents.
The groups filed suit in the U.S. Court of Appeals in Washington, D.C. late Monday. The new EPA rule took effect in April.
Jim Pew, an attorney with Earthjustice in Washington who is representing the groups, said that the new rule gives the EPA discretion in asking refineries and other plants for contingency plans for dealing with breakdowns and making those plans public.
Pew also said that under the rule, those plants would not be legally liable for failing to abide by their own plans.
"Previously each plant was required to submit a malfunction plan that was carefully reviewed and approved, and subject to enforcement action by the EPA or the public. That's all gone now," Pew said.
The lawsuit was filed partially in response to a breakdown in September in Wilmington when the Shell, Conoco-Phillips and Valero refineries emitted brown and yellow smoke for more than eight hours after an area power outage.
Jesse Marquez, head of the Coalition for a Safe Environment in Wilmington, one of the groups that filed suit, said a door-to-door survey of residents afterward found that more than 25% had experienced asthma attacks, congestion, burning eyes and other problems.
"This massive toxic release could have been avoided had the refineries been required to prepare an adequate contingency plan that included a backup power source during a blackout," the environmental groups said in a release. "Unfortunately, EPA's rules encourage such reckless lack of planning by exempting plants from toxic emission limits during malfunctions and allowing plant owners to keep their backup plans secret from the public."
Representatives of the refineries and the Western States Petroleum Assn. either could not be reached, or did not return phone calls seeking comment.
EPA spokesman John Millett said higher emissions during start-up, shutdown and malfunction of plants were unavoidable, just as cars emit more when they are started.
In response to the lawsuit, the EPA said that it would review the matter and "respond appropriately."
The agency said its new rule requires refineries and other industrial plants to develop plans that describe how they will operate to minimize emissions during periods of start-up, shutdown and malfunction. Industrial air pollution is heavily regulated in the United States, the EPA said.
In addition to the new rule, the agency added, the Clean Air Act and 96 additional rules require more than 170 different kinds of plants to eliminate 1.5 million tons of hazardous air pollutants per year.
Pang Mueller, a senior refinery unit manager at the South Coast Air Quality Management District, said that noxious sulfur dioxide, nitrogen dioxide and other substances were emitted from the refineries in Wilmington in September. But she said that the releases were necessary to avoid explosions at the plants when electricity was cut. She said emissions were from high smokestacks that carry fumes downwind, away from residents.
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