Supreme Court Refuses to Hear Air Pollution Case

The Supreme Court sided with community advocates by refusing to review a decision
(09-495) by the United States Court of Appeals for the District of
Columbia Circuit that closed a gaping air pollution loophole. The
loophole, known as the "startup, shutdown and malfunction" exemption
effectively allowed major industrial polluters to exceed emissions
standards whenever they claimed that their equipment "malfunctioned."

The community groups, represented by Earthjustice in this case against the Bush-era U.S. Environmental Protection Agency, had succeeded in closing the loophole
with a win in federal court in December 2008. Following the D.C.
Circuit's decision, EPA did not seek Supreme Court review, but American
Chemistry Council and other major industry groups, which had intervened
in the case, did.

"We're pleased that the court has finally put an end to this
litigation," said Earthjustice attorney Jim Pew. "This air pollution
exemption has caused terrible suffering in thousands of communities. No
one disputes that it's illegal. Under the Obama administration, EPA has
already committed to rethink this loophole, and we look forward to
working with the agency to bring relief to overburdened communities as
soon as possible."

The groups that brought the case, Sierra Club, Environmental
Integrity Project, Louisiana Environmental Action Network, Coalition
for a Safe Environment and Friends of Hudson, acted to protect their
members and others who live in communities in the Gulf Coast, southern
California, upstate New York, and across America that are subject to
vast quantities of excess toxic pollution when refineries, chemical
plants, and other industrial facilities exceed their emission standards
as a result of alleged "malfunctions" as well as when operations
startup and shutdown. During these events, toxic emissions can
skyrocket, severely degrading air quality. And some facilities evade
clean air protections by claiming that they are in "startup, shutdown
and malfunction" mode during much of their operating time.

The loophole's potential for abuse was on full display on Sept. 25,
2009, when news outlets reported on a fire caused by a malfunction at
the Tesoro Energy Corp's Wilmington, California refinery. What most
news reports don't detail is the fact that the fire burned for more
than 6 hours. That's several hours of fumes emitted from a 100,000 barrel-per-day refinery. The refinery produces gasoline, jet fuel, diesel fuels, petroleum coke and fuel oil.

Jesse Marquez, executive director for the Coalition for a Safe
Environment, lives just three miles away from the Tesoro refinery. He
was at the scene of the incident and said the malfunction began at 6
a.m. and for hours a noxious smell of crude oil and diesel fuel fumes
filled the air. The refinery notified the elementary school a mile away
of the fire but it did not inform residents. Not only did residents
contend with poisonous emissions, the fire left soot on peoples' cars
and homes. The refinery eventually paid for the cost of cleaning homes
and cars but did not reveal what public health risks occurred as a
result of the hours-long exposure to these pollutants. Along with the
Tesoro refinery, Wilmington -- just four square miles -- is home to the
ConocoPhillips and Valero refineries.

"Almost every week a refinery has a malfunction and equipment break
down and almost every year there is a fire," said Marquez. "Each of
these refineries exposes our children to hundreds of tons of toxic
pollutants every year. I am pleased with the Supreme Court's decision
because we need strict rules to regulate refineries and they must be
held accountable when their violations of emission standards put the
public in harm's way."

"Hopefully as a result of this decision, companies will take
responsibility for accidents that expose their neighbors to dangerous
pollutants," added Eric Schaeffer, director of Environmental Integrity
Project. "The Clean Air Act doesn't excuse 'accidental' pollution, and
neither should the U.S. Environmental Protection Agency."

Citizens of the state of Texas are also among those who will benefit
from the Supreme Court's decision. With more than 250 industrial sites,
Texas is home to the nation's largest number of refineries, chemical
and petrochemical plants in the nation. The state is also one of a few
that tracks pollutants released during startup, shutdown, and
malfunction periods: according to state records, thirty facilities
emitted more than forty-five million pounds of toxins in just one year
during these off-the-books periods.

"Startups, shutdowns and malfunctions create some of the highest
volumes and worst toxic air pollution released by large industrial
factories, and nearby communities suffer the horrible impacts of the
chemicals dumped into their air supply," said Neil Carman, clean air
director for the Sierra Club's Lone Star Chapter and a former Texas
state refinery inspector.

In nearby Louisiana, there are some 20 million pounds of air toxics
pumped into the air each year, with one part of the state given the
dubious nickname "Cancer Alley."

"This is not about numbers on a page," said Marylee Orr, executive
director of Louisiana Environmental Action Network. "This is about
making the air healthy to breathe, communities quality of life better
and that will help the economy. We thank the Supreme Court for
protecting people's health."

Susan Falzon of Friends of Hudson represents residents living near
or downwind the Lafarge cement kiln plant in Ravena, NY. She said
residents have been subjected to regular startup, shutdown and
malfunction emissions incidents that have gone on for years with no
enforcement actions taken.

"The incidents are largely unpublicized and therefore the general
public is unaware of this danger," Falzon said. "We are fortunate that
there have been no major mishaps but at the same time we have been
exposed to a slow and steady series of so-called minor incidents.
Closing this loophole is a victory for our communities."

"The court made the right decision; the Clean Air Act requires
continued compliance with its standards," said Jane Williams, Chair of
Sierra Club's Air Toxics Task Force. "This loophole has been a
get-out-of-jail free card for far too long for dirty industries."