A lawsuit challenging the permitting of a waste incinerator in Arecibo, Puerto Rico, failed in the D.C. Circuit last Friday, as the court of appeals ruled the Sierra Club de Puerto Rico was almost 36 years too late in bringing its Clean Air Act challenge.
The incinerator plant, which is expected to release 0.31 tons of lead air pollution annually, is new. But the rule governing its permitting is not, dating back to 1980. The Sierra Club had failed to show any “after-arising grounds” for challenging the rule, the court ruled.
Lead Pollution in Arecibo
Arecibo is a nonattainment area for lead pollution under the Clean Air Act, meaning it has more lead air pollution than allowed under the Act. Much of that pollution comes from a battery recycling facility with produces approximately 30 tons of lead pollution a day, though only a small amount of that pollution is air pollution.
Lead pollution has serious and long-lasting negative health effects, ranging from compromised kidney function to delayed neurological development. Lead exposure is particularly dangerous to children, where it can cause serious learning and IQ disabilities, for whom no amount of lead in the blood is safe. In 2011, more than 20 percent of 150 children potentially exposed to lead from the Arecibo battery recycling facility tested positive for elevated lead levels.
The waste incinerator, operated by Energy Answers Arecibo, will undoubtedly increase the level of lead in the area. According to the Sierra Club, it is even projected to emit more lead air pollution per year than the battery recycling facility.
The Clean Air Act’s NNSR Program
Despite potentially exacerbating Arecibo’s lead pollution problem, under Clean Air Act regulations from 1980, the waste incinerator would not be bound by any of the stringent nonattainment area permitting regulations required by major air pollution sources, since it emitted less than 100 pounds of lead pollution a year.
Under the CAA, air pollution sources in nonattainment areas must obtain nonattainment new source review permits prior to construction. NNSR permits allow for some of the Act’s most stringent pollution controls, but those restrictions apply only to “major stationary sources.”
The Act itself defines “major stationary source” as one with the potential to emit 100 tons per year of any air pollutant. The interpreting regulations in question limit that definition significantly; a pollution source is only a major stationary source when it emits 100 tons of the pollutant for which the areas is designated nonattainment. Thus, for the NSSR restrictions to apply to the incinerator, it would have to release a massive 100 tons of lead air pollution.
No After-Arising Grounds
In challenging Puerto Rico’s permitting of the incinerator, the Sierra Club sought to undo the 1980 rule which limited NNSR’s scope. But, unfortunately for the Club (and the lead-afflicted people of Arecibo), such a challenge was more than three decades too late.
The Clean Air Act sets a 60-day statute of limitations for challenging EPA regulations, running from the adoption of those regulations or an occurrence of “after-arising grounds.”
The Sierra Club sought to portray the permitting of the incinerator as such an after-arising ground, but the D.C. Circuit was not convinced. While an after-arriving ground is one that “encompasses the occurrence of an event that ripens a claim,” that event must be more than just “the mere application of a regulation.” It must make an otherwise untimely claim timely or “change the legal landscape” — neither of which happened here.
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