EPA Soot-Screening Rule Thrown Out by U.S. Appeals Court

The U.S. Environmental Protection Agency doesn’t have authority to waive mandatory tests intended to determine whether projects at large power plants would increase soot pollution, a federal appeals court ruled.

Regulations challenged by the Sierra Club, which allow some power plants and other industrial facilities to avoid testing, violate the intent of the Clean Air Act, Circuit Judge David Sentelle wrote for a three-judge panel of the U.S. Court of Appeals in Washington.

The court today also struck down the authority of the EPA to issue waivers for monitoring soot before construction to establish a baseline on pollution for future testing.

“The monitoring requirement is a regulatory function that provides benefits, and the statute precludes the EPA from exempting that requirement,” Sentelle wrote.

The lack of a baseline test is “like a doctor telling someone they don’t know how much of a dangerous drug they’re taking before giving them more,” said David Baron, managing attorney for Earthjustice, a San Francisco-based environmental advocacy group, who argued the case on behalf of the Sierra Club.

The rules apply only to plants that produce large volumes of emissions, Baron said.

David Bloomgren, a spokesman for the EPA, didn’t immediately return phone calls seeking comment on the ruling.

Too Far

The regulation struck down by the court automatically exempts a proposed facility from further testing by a range of state and federal permitting authorities if it’s projected to produce low levels of soot.

The EPA, saying the rule was flawed, argued that those agencies should instead have discretion to require testing and corrective action at any level, Sentelle wrote in his opinion.

“Permitting authorities should determine when it may be appropriate to conclude that even a de minimis impact will ’cause or contribute’ to an air quality problem and to seek remedial action from the proposed new source or modification,” the judge wrote, citing EPA statements.

The San Francisco-based Sierra Club probably will challenge any new EPA rule that sets a soot level below which new plants might be subjected to less scrutiny, Baron said.

“They can’t possibly know that every plant that comes in under some arbitrary number isn’t going to tip an area into violation,” Baron said in a telephone interview.

The Utility Air Regulatory Group, a coalition of power companies and other interests affected by the rule, asked the court to uphold the waiver provision.

Andrea Bear Field, an attorney for the group, declined to comment on the ruling.

The case is Sierra Club v. U.S. EPA, U.S. Court of Appeals, District of Columbia (Washington).

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