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September 30, 2021

Earthjustice Applauds EPA’s Tightening of Chemical Air Pollution Loopholes

Communities deserve robust public health protections from ongoing, serious pollution spikes

Contacts

Erin Fitzgerald, efitzgerald@earthjustice.org

Washington, D.C.

Today, the Environmental Protection Agency (EPA) announced it is withdrawing a dangerous Trump-era policy that encouraged states to undermine badly needed protections against air pollution. Under Trump, EPA issued a memorandum expressly allowing states to poke loopholes into their plans for implementing national ambient air quality standards. One kind of loophole allows refineries, chemical plants, and other major pollutants to avoid compliance with emission control requirements whenever they start up, shutdown, or malfunction (SSM). Another allows sources to avoid paying penalties even if they are caught emitting unlawful amounts of pollution by proffering “affirmative defenses.” The effect of these loopholes is to give polluters a free pass to release ozone-forming chemicals, soot (PM2.5), and other pollutants typically regulated by national ambient standards by allowing them to act with impunity and eliminating checks on frequency, time, or volume of air pollution. For workers and families near the facilities that use the loophole, the cumulative impacts are serious, increasing the risk of various cancers, asthma, and other respiratory ailments, heart attack, and even early death.

SSM exemptions and affirmative defenses allow polluters to avoid compliance with emission standards, stop reporting their pollution, and avoid fines for the excess pollution they emit into neighboring communities. A federal appeals court found such loopholes to be flatly unlawful in 2008 and 2014 decisions rulings, and in 2015 the Obama-Biden administration directed dozens of states to close them. But the Trump administration reversed much of this progress through administrative actions.

The following statement is from Terry McGuire, Senior Legislative Representative for Healthy Communities at Earthjustice: 

“This is a relief and now we look to EPA to promptly commit to fix the same problem in its air toxics rules that especially harm fenceline communities facing cumulative impacts — including by ending the dangerous version of the SSM loopholes that give industry free passes to pollute through flares and valves, and that allow refineries and petrochemical plants to evade the emission standards during malfunctions labeled as ‘force majeure events’ like the serious releases during this year’s hurricane and winter storms.

“We also urge EPA to quickly follow up by closing these loopholes where they already exist in state plans to implement national ambient air quality standards.”

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.