A new federal rule that doesn’t limit the release of toxic air pollutants by refineries during power outages, harsh weather conditions or other circumstances outside the company’s control, while also allowing occasional malfunctions by pressure-release systems, is being challenged by a group of environmental organizations, including one from Louisiana.
At the same time, Earthjustice, on behalf of most of these environmental groups, filed a lawsuit Monday against EPA in the U.S. Court of Appeals for the D.C. Circuit alleging that EPA is allowing loopholes within the regulations that could harm communities and are contrary to the federal Clean Air Act.
The petition to EPA is required under the Clean Air Act before a lawsuit can be filed, Earthjustice attorney Emma Cheuse said.
A main issue for the environmental groups is the exemptions to the Clean Air Act that takes away fines and other penalties when pressure-release systems malfunction once or twice every three years.
With more than 150 refineries in the country containing more than 15,000 pressure-release devices and many flares, these exemptions can add up, Cheuse said.
In Louisiana, state rules already mandate that these pressure-release devices — with few exceptions — vent into a recovery system or flare so material isn’t released in to the air, said Richard Metcalf, director of environmental affairs with Louisiana Mid-Continent Oil and Gas Association. The devices are a safety measure to prevent pressure from building up in tanks or systems, possibly leading to equipment damage or explosions.
The environmental lawsuit also states that the rules don’t place any limits on how many times a refinery can say a release of toxic air pollution was caused by a “force majeure,” many times called an “act of God,” such as a power outage or harsh weather. However, she said, the final rule never defines what these events can be other than giving examples which could open the door for some refineries to abuse the exemption.
Metcalf said companies can’t just claim “force majeure” exemption for any release of pollution.
“I don’t think force majeure protects you from a bad operation decision or bad design,” he said.
Cheuse said the exemptions were not included in the proposed rule that environmental groups made extensive public comments on. However, by the time the final rule was approved, some of these exemptions were put back in without a chance for public comment.
“(Exemptions) will allow too much toxic air pollution to go into the air,” she said.
Much wider exemptions were allowed previously, but in 2008, federal courts decided that they were not legal under the Clean Air Act, she said. From that time until now, additional lawsuits forced EPA to reconsider the refinery rules.
The groups who filed the petition include the Louisiana Bucket Brigade, Air Alliance Houston, California Communities Against Toxics, Clean Air Council in Philadelphia, Coalition for a Safe environment from California, Community In-Power Development Association in Texas, Del Amo Action Committee in California, Texas Environmental Justice Advocacy Services, Environmental Integrity Project, Sierra Club and Utah Physicians for a Healthy Environment.
EPA officials said they are reviewing the lawsuit.
Follow Amy Wold on Twitter, @awold10.