Startup, Shutdown, and Malfunction (SSM) Reconsideration

Case Overview

Toxic air pollution from refineries, chemical plants, incinerators and other large industrial plants can increase to as much as ten times allowable levels during startup, shutdown, and malfunction events. Nonetheless, EPA’s regulations exempted plants from toxic emission limits during these periods. Moreover, though EPA requires plant operators to prepare a plan for minimizing emissions during these highly polluting periods, EPA did not require plants to comply with their plan and allowed the plan to be kept secret from the public.

In December of 2008, as a result of this lawsuit, this loophole was closed by a federal court. Industry groups appealed the decision, and in March 2010, the U.S. Supreme Court refused to review the case, effectively ending litigation.

Case Updates

A child wearing a Spiderman mask and t-shirt marches alongside community members, while defiantly holding up a handmade poster that reads, "My spidey senses are foggy!!! Clean air now" during the "March For Clean Air! Stop Dumping in Newark" in Nov. 2021. The rally called on state officials to act against a proposed sludge facility and the extension of a gas plant in the chemical corridor area of Newark.
October 19, 2023 Press Release

Environmental Advocates Move to Defend EPA Rule Removing Polluter Loopholes

Companies use affirmative defense to avoid the consequences of releasing unlimited amounts of toxic emissions during emergencies

July 14, 2023 Press Release

EPA Closes Loopholes Companies Use to Release Unlimited Air Pollution During Malfunctions

Air polluters use affirmative defense to avoid the consequences of releasing unlimited amounts of toxic emissions during emergencies

September 13, 2022 Document

Petition for Rulemaking, SSM (September 2022)

Earthjustice, along with a coalition of community advocacy and environmental groups, formally petitioned the U.S. Environmental Protection Agency (EPA) to eliminate loopholes in national Clean Air Act protections that allow facilities like oil refineries, chemical plants, and incinerators to disregard emission standards, stop reporting their pollution, and avoid fines or other consequences for excess pollution they emit during startup, shutdowns, and malfunctions (SSM). Courts have repeatedly told EPA that these exemptions are illegal — and EPA itself recognizes these exemptions...