MERRILLVILLE, Ind. (STNG) -- A federal judge says he won't halt BP Whiting's expansion or hear a national environmental group's appeal of the refinery's air permit.
The Natural Resources Defense Council was hoping to send BP back to the drawing board with the Indiana Department of Environmental Management to get a more stringent permit that requires better air pollution control equipment. The NRDC had also asked the judge to impose civil penalties on BP for modifying at least one refinery unit before getting a permit to do so.
U.S. District Court Judge Philip Simon, sitting in Hammond, dismissed the case Friday, stating the NRDC's federal case is "nearly identical" to three appeals filed in state court by other environmental groups, some of whom are represented by NRDC attorneys. He said the approach "smells fishy" and called it a "divide and conquer.
"A cynic might conclude that the NRDC and its colleagues at the Sierra Club were trying to fight the war on two fronts," Simon stated in his ruling.
He added the state cases are further along and judges at the state Office of Environmental Adjudication have more expertise in reviewing IDEM permit decisions.
The NRDC had argued that BP violated the Clean Air Act by not obtaining the right type of permit. The group said BP's modifications would result in increased emissions of various hazardous pollutants and that IDEM was duped into giving BP the wrong permit because BP underestimated emissions from the expanded refinery.
"The NRDC thinks the IDEM got the call wrong. It may have. But the proper remedy is through the Indiana regulatory and state court process," Simon wrote. "What is the point of having an expert agency appeals process -- or a state court appeals process -- if litigants can simply side-step it by turning to federal courts?"
NRDC spokesman Josh Mogerman said the organization is disappointed in the decision and looking at the best way to move forward.
"We're challenging what we feel are inadequate permits that have been awarded to this project and we're pushing to address that," he said. "We have real concerns about tar sands oil. It is a dangerous and irresponsible fuel source. But this case is about the added pollution the state will allow BP to put into the air and the public health impact it will have on surrounding communities."
The NRDC also argued BP commenced construction before getting a permit, a point the U.S. Environmental Protection Agency has raised in notices of violation to BP in November 2007 and October 2008.
BP had argued that the federal judge did not have jurisdiction to hear the case. Simon disagreed, saying NRDC can come back to request civil penalties after a state case if BP did, indeed, start construction in 2005 -- three years before getting a permit.
BP spokesman Scott Dean only had one comment.
"We continue to move forward with the modernization project," he said.
Hearings on the three state appeals are scheduled to start Nov. 2.
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