When is a shipping facility like a shopping center? When it's polluting the air, according to the Environmental Protection Agency.
Because Congress has limited the EPA's authority to regulate air pollution around shopping centers, EPA has concluded it has no authority to regulate air pollution around shipping terminals.
The decision, published in the Federal Register, reverses the position taken by the Carter administration, which issued regulations for shipping facilities in 1980.
The argument put forth by the shipping facility industry and adopted by EPA is that a marine terminal draws vessels the way a shopping center draws cars. Because Congress forbade EPA from regulating the air pollution around shopping centers, shipping terminals also should be exempted, said the industry.
California, Illinois and Connecticut have warned that efforts to clean up air pollution could suffer serious setbacks in their states. California, along with the Natural Resource Defense Council, has gone to court to try to stop the action.
NRDC attorney David D. Doniger said, "This clumsy attempt to embrace an industry's desire to escape from required, needed pollution-control regulations belies any commitment" to cleaning up the environment.
But EPA says it is merely obeying Congress. In 1973, EPA issued regulations for reviewing the air pollution caused by shopping centers, sports arenas and similar places. While these structures alone caused little air pollution, EPA felt the great number of cars they could attract might create a problem.
Developers, shopping center associations and other business groups protested, and four years later Congress adopted an amendment limiting EPA's authority to regulate such facilities.
In August, 1980, EPA adopted regulations on marine terminals, triggering protests from the shipping facilities that the Hill amendment had also exempted them.
NRDC countered that legislative history proves Congress was referring only to cars in its amendments. It noted that car emissions are regulated while those of ships are not.
The Carter EPA agreed with NRDC, but the Reagan EPA did not and withdrew the regulations.
Bogan Richard, vice president of GATX Terminals Corp., a developer and operator of marine vessels and one of the companies leading the fight, said, "naturally, we're pleased" with the EPA decision.
But Illinois environmental official Daniel J. Goodwin warned that it would cause pollution problems in his state, which has a number of major terminals near areas with air quality problems. "The emissions from these loading and unloading activities are a significant amount of pollution in the state of Illinois," Goodwin said in comments submitted to EPA. He called EPA's interpretation of the Clean Air Act "strained" and "clearly erroneous."
States such as Connecticut that do not have a large shipping industry also have expressed concerns. Connecticut fears unregulated activity at New Jersey ports could hurt its air quality.