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Our Children's Earth has successfully litigated cases on both the national and local levels. We have brought action against enforcement agencies and private polluters, resulting in precedent-setting verdicts that have not only ended pollution violations, but have increased access to information that is critical to winning the war for clean air.
For additional information on active litigation, please visit our Current Cases page.
Access to Information for Everyone. OCE initiative makes the US EPA publish important documents on the Internet.
Our Children’s Earth (OCE), represented by the Golden Gate University Law School, Environmental Law and Justice Clinic, required EPA and States to publish state implementation plans (SIPs) on the Internet so that concerned citizens and community groups are able to access important documents that are critical to local decision-making and planning processes. SIPs are detailed federal rules adopted by states and localities for attainment and maintenance of federal clean air standards set to protect public health. In the past, SIP rules and planning documents were housed at EPA regional office libraries, which required concerned citizens, in some cases, to drive hundreds of miles to obtain copies of the documents.
In 2001, OCE reached a settlement agreement with EPA Region 9, requiring the publication of the SIP for Region 9 states of California, Nevada, Hawaii, and Arizona on the Internet. OCE filed a second case for the remaining nine EPA Regions in 2002. We successfully negotiated a settlement that resulted in publication of the SIPs for the remaining states and regions on the Internet.
Ensuring that Late Title V Permits for California, Arizona, Nevada and Tennessee were Issued
In 2002 OCE brought a series of enforcement actions against several air management agencies across the nation, for failure to issue federal air pollution permits (Title V) to large industrial sources in a timely manner. Polluting sources without permits included oil refineries, coal-fired power plants, landfills, and waste treatment facilities. The agencies were violating their duty under the Clean Air Act to issue the Title V permits, many of which had permit applications dating back to 1996 or 1997. Without federal permits, the facilities were operating without monitoring air emissions and reporting those emissions to the EPA and the public. Without the permits, the public lacked the necessary information to easily ascertain the air emissions and compliance status at a facility as required under the Clean Air Act. Settlements with four air management agencies in California (Placer, San Joaquin, San Diego, and Yolo-Solano counties), and air management agencies in Arizona, Nevada and Tennessee resulted in the prompt issuance of a number of Title V permits for major industrial facilities.
Closing the Loophole in California’s Agricultural Exemption for Title V Permits
OCE, along with other environmental groups, successfully brought an enforcement action against the EPA for failure to terminate California’s Title V permit exemption for agricultural operations under the Clean Air Act. The coalition of community, health, and environmental organizations went to court in January 2002, to bring California agriculture under the same permitting requirements as those faced by similar operations in the other 49 states. California state law prohibited local air districts from requiring permits for agricultural operations. Agriculture had been shielded from state regulation by a provision of state law that prohibited local air districts from requiring permits for “any equipment used in agricultural operations in the growing of crops or the raising of fowl or animals.”
The state law exemption included massive dairy cow operations in the Central Valley and other parts of California. Large dairy cow operations have recently been shown to emit as much or more VOC (volatile organic compound) air pollution than motor vehicles in some cases. If not for OCE’s actions, these facts might never have been discovered because the air pollution from these operations was completely unregulated. The requirement to obtain a permit by agricultural operations includes the requirement to reduce excess air pollution. EPA settled the case with OCE and the other groups in May 2002, and the California State Legislature removed the agricultural exemption from state law that same year.
New Source Performance Standards - Electric Steam Generating Units & Stationary Gas Turbines
In 2003, OCE was victorious in its action against the EPA for its failure to protect public health by neglecting to update the emission standards for power plants and other sources utilizing electric steam generating boilers. The Clean Air Act requires that the standards for electric utility boilers and other industrial categories be updated every eight years. Our lawsuit alleged that the standards for boilers had not been updated in over 12 years. Updating the standards means that newer, better pollution-control technology will be implemented at these sources. EPA is currently engaged in rulemaking to update the standards.
OCE filed a “Friend of the Court Brief” for the historic Sierra Club v. Department of Transportation Case
OCE, Environmental Defense and Transportation Solutions Defense and Education Fund filed an amicus brief (“friend of the court” brief) with the federal 9th Circuit Court of Appeals in Sierra Club v. U.S. Department of Transportation, et al. Sierra Club’s case challenged the widening of Highway US-95 in Las Vegas from six to ten lanes in a residential area where two elementary schools and a high school were immediately adjacent to the highway. The increased traffic volume created by the freeway might have led to an increased risk of cancer for those who live near the highway. OCE’s brief supported Sierra Club’s goal which was to require the U.S. Department of Transportation to study the health effects of toxic air pollutants and particulate matter from highway projects.
In June 2005, Sierra Club settled the case and the Department of Transportation agreed to take steps to reduce human exposure to motor vehicle emissions along Highway US-95 and agreed to study highway emissions of diesel particulate matter and other hazardous air pollutants.
Reducing Water Pollution from Offshore Oil Platforms
OCE, along with several other environmental groups, succeeded in an enforcement action against the EPA in January 2003 for its failure to take long overdue action to issue and finalize water permits for oil exploration and drilling platform facilities located off the coast of Southern and Central California. At the time OCE brought suit, several of the permits at issue had been expired for at least 22 years. EPA’s delayed action on these permits was in direct contradiction to the Clean Water Act’s requirement of renewing these permits at least every five years. Because of OCE’s efforts, EPA issued updated final water permits that will ultimately discharge fewer pollutants from the oil platforms into the waters of the United States. We executed the consent decree in August 2004.
OCE Initiative Exposed Faulty Pollution Trading Scheme in Los Angeles and Created Million Dollar Fund for Additional Pollution Reductions in Disadvantaged Communities
In March 2002, OCE, along with Communities for a Better Environment, filed the first citizen’s suit under the Clean Air Act against nine companies (City of Burbank, United Airlines, Southern California Gas Co., National Gypsum Co., Crimson Resource Management Corp., Western Metal Decorating, Fontana Paper Mills, Van Can Co., and Pomona Paper Co.) in the Los Angeles area for violations under a pollution trading scheme. Our successful enforcement action penalized polluters for violating the Clean Air Act and banned such violators from using and trading illegal pollution credits. In addition, we forced the violators to use proper accounting methods (which they weren’t using at the time of our complaint) when calculating emissions as required by local air districts’ rules and regulations. This action resulted in large reductions of NOx pollution to make up for past violations and assured proper accounting methods in the future.
In a separate but related action, OCE targeted the governing agency of the faulty pollution trading program – the South Coast Air Quality Management District (SCAQMD). Together, the groups successfully “motivated” the agency to “clean up” its faulty air pollution trading program known as RECLAIM – the Regional Clean Air Incentive Market. OCE brought suit against the District because they calculated the trading credits in an annual basis instead of a quarterly basis as required by law.
In March 2004, OCE and CBE settled the action against SCAQMD and forced the agency to ensure that companies comply with the pollution trading scheme on a quarterly rather than an annual basis. In addition, the settlement agreement created a one-time, one million dollar fund to finance pollution reduction projects in disadvantaged communities in the LA area. In November 2004, the funds were awarded to 8 projects – including the installation of solar energy systems on rehabilitated homes in low-income neighborhoods and the purchase of compressed natural gas trolleys to be used for public transportation in the city of San Fernando.
EPA Settles Clean Air Lawsuit with Community & Public Health Groups: Diesel Irrigation Pump Engines to be Better Regulated
OCE, Medical Advocates for Healthy Air, and the Sierra Club filed a lawsuit against the Federal EPA in May 2003 after the Agency issued a guidance document regarding permit applications to agricultural sources for air pollution in California. The guidance requested that the sources “estimate” the “actual” number of hours that diesel irrigation pump engines will be used in order to determine whether the engines needed a federal permit. The Clean Air Act, however, does not allow sources to guess what their own emissions are likely to be. The law requires sources to be regulated on the basis of their “potential to emit.”
Using EPA’s guidance, many potentially major sources of air pollution would have easily escaped permitting requirements by underestimating or understating their emissions. The coalition of groups suing called EPA’s shortcut “regulating with a wink and a nod,” essentially tempting farmers to underestimate their own emissions so that they could avoid applying for permits. By the May 1, 2003 deadline, EPA had received only 18 applications for permits, a much lower number than expected due to the overly lax guidance. OCE’s lawsuit ended in a settlement in which the U.S. EPA agreed to withdraw the guidance document.
LOCAL BAY AREA CASES
OCE Action Motivates Bay Area Company to Clean Up its Operations Rather than Go Through Costly Legal Process
In April 2005, in an effort to bolster enforcement of the federal Clean Water Act, OCE notified Standard Iron and Metal in Oakland, CA of our intent to sue the company for its Clean Water Act permit violations. The company was discharging polluted storm water runoff into the San Francisco Bay from its large scrap metal recycling operation. Metal scrapping and remanufacturing facilities, especially those with outdoor stockpiling, processing and segregation of materials, are a major source of storm water contamination, releasing a variety of harmful substances including heavy metals, fuel, oil, lubricants, PCBs, grease, lead acid, lead oxides, chlorinated solvents, asbestos, ethylene glycol, paint, and chemical residues.
Rather than go through a costly and time-consuming legal process, Standard did a complete renovation of its scrap metal operations. Having installed new controls and filters to reduce storm water runoff, the company invited OCE’s attorneys on a site visit to inspect the improved system. With proper maintenance, Standard should remain in compliance with the law as a result of its recent measures, and thereby dramatically reduce the amount of pollution runoff from its site.
Clean Air Act Title V Program monitoring and enforcement in the Bay Area
Title V is a program that Congress established in 1990, intended to set forth in a single operating permit all of the federally applicable clean air requirements. Without a Title V permit, it is extremely difficult to determine the correct legal requirements for an air polluting facility because the requirements may be contained in numerous documents spread throughout a local air agency. The Title V program also imposes monitoring, record keeping and reporting requirements to ensure compliance with the clean air laws. Although Title V is a federal program, it is administered by local pollution control districts like the Bay Area Air Quality Management District (BAAQMD).
In 1995, U.S. EPA granted BAAQMD interim approval for its Title V air permit program. The interim approval allowed BAAQMD to administer the Title V program and gave it time to correct any program deficiencies identified by EPA. In October 2001, EPA proposed to give final approval to BAAQMD’s Title V program despite its deficiencies and nonconformity with the Clean Air Act. OCE submitted adverse comments opposing the proposed final approval. Despite public opposition, on December 7, 2001, EPA granted full approval of BAAQMD’s Title V program. OCE challenged this approval in the federal Ninth Circuit Court of Appeals.
As a result of OCE’s lawsuit, the parties reached a settlement in December 2002. The settlement agreement outlines rulemaking actions and deadlines to be met by BAAQMD. BAAQMD met its obligations under the settlement agreement and the BAAQMD Title V program now meets federal Clean Air Act standards.
Late Title V Permits in the Bay Area
All existing major sources (i.e., factories, power plants and refineries) were required by the Bay Area Air Quality Management District (BAAQMD) regulations to submit a complete Title V permit application by July 24, 1996. By the terms of its own regulations, BAAQMD should have taken action on all of the pending Title V permit applications by July 1, 2001. Incredibly, BAAQMD failed to take action on permits for refineries and other major sources by the deadline. OCE filed suit in state court to compel BAAQMD action on the permit applications. In response to OCE’s lawsuit, BAAQMD and its Air Pollution Control Officer, Ellen Garvey, agreed to take final action on more than 20 long-overdue operating permit applications no later than December 1, 2003, a move which required polluters to self-report air violations.
Forcing the Bay Area Air Quality Management District to Turn Over a Backlog of Industry Notices of Violation to the Public
In early 2001, OCE, represented by the Environmental Law & Justice Clinic at Golden Gate University School of Law, filed suit under the California Public Records Act to force the Bay Area Air Quality Management District (BAAQMD) to release a backlog of approximately 1,200 outstanding notices of violation issued to Bay Area industries. BAAQMD agreed to settle the case and turned over the relevant public documents. Soon after OCE filed suit and the publicity that followed, BAAQMD resolved some of the longstanding allegations of violations of polluters. This unprecedented action illustrated to the public that the Air District was failing to prosecute violators of air pollution laws and forced a significant sea change at the District. OCE shined a bright light on the Agency’s inaction and inadequate protection of the public’s health.
Bay Area Diesel Backup Generators
In 2001, the Bay Area Air Quality Management District (BAAQMD) adopted a rule requiring newly installed diesel backup generators (BUGs) of a certain size to get a permit. Before the adoption of the rule, diesel BUGs were exempt from any permitting requirement, making it difficult to assess whether diesel BUGs were operated for emergency use only. While the rule itself was positive, the BAAQMD revised its toxic risk management policy in connection with the rule to allow a tenfold increase in cancer risk for emissions from certain diesel BUGs. OCE filed a lawsuit over the policy arguing that its rule to allow an increase in cancer risk was illegal. As a result of OCE’s lawsuit, BAAQMD rescinded the illegal policy and agreed to create new rules for regulating sources of toxic air contaminants. In May 2003, BAAQMD proposed a new set of rules to regulate emissions from new and modified sources of air toxics (Toxics New Source Review or NSR). In June 2004, the BAAQMD Board of Directors adopted the new “Community Air Risk Evaluation” (CARE) program, to begin to address the problem of cumulative health risks in the Bay Area.
Mirant Peaker Violations
During the California energy crisis of 2001, rather than enforce the Clean Air Act, BAAQMD and EPA decided to enter into a backroom agreement with the Mirant Potrero Power Company to allow the power facility to provide power from its peaker units at its Potrero Power Plant in excess of the hourly operational limits allowed by law. Peaker units burn oil, making them dirty generators of energy. Peakers are intended to operate during peak demand only, and are equipped with little or no pollution control. While the peakers at Potrero typically operated 200-300 hours a year, some of the peakers operated in excess of the permitted 877 hours a year in 2001.
Along with other community groups, Bayview Hunters Point Community Advocates and Communities for a Better Environment, OCE sued Mirant and other defendants to compel cessation of illegal peaker use or, in the alternative, to force Mirant to install the necessary pollution controls for extended use. The City and County of San Francisco also joined the suit. Shortly after filing suit, OCE reached a settlement with Mirant, under which Mirant agreed to cease exceeding the permit limits at the dirty peaker units and to pay $100,000 into a mitigation fund for projects benefiting air quality in Southeast San Francisco.
Title V Permit - Los Medanos Energy Center, Pittsburg, CA
In 2004 OCE succeeded in requiring a local air management agency to improve the Title V permit for the Los Medanos Energy Center in Pittsburg, California. Their permit was not accompanied by a statement of basis, which is a document setting out the legal and factual basis for the permit terms. The statement of basis assists the public, the source, and the regulators in understanding the permit’s terms. Without the statement of basis, it is extremely difficult to determine whether the permit is adequate.
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