Citizens' Groups Fight "Free Pass" for Air Polluters

Air pollution loophole in federal court today


Kathleen Sutcliffe, Earthjustice, (202) 667-4500, ext 235

A panel of federal judges will hear arguments today in a lawsuit by environmental groups seeking to close a gaping loophole in federal air pollution regulations.


The groups, represented by the public interest law firm Earthjustice, are challenging a regulation adopted by the Environmental Protection Agency (EPA) allowing refineries, chemical plants, and other industrial facilities to ignore pollution limits whenever equipment malfunctions, and whenever they start up or shut down operations. During these periods, toxic emissions can skyrocket, severely degrading air quality. Some facilities evade clean air protections by claiming that they are in startup, shutdown, or malfunction mode during much of their operating time.

Residents in the Los Angeles neighborhood of Wilmington, a Southern California oil-refining hub, report seeing the tell-tale signs of refinery malfunctions — gas flares and billowing smoke – at the area’s four refineries on a nearly weekly basis.

Marie Malahi lives in the shadow of one such refinery and now schools her asthmatic young son at home so she can protect him from the unpredictable spikes in bad air quality.

"When you see the flames jump from the refinery stacks, you know it’s about to get really bad," Malahi said. "There’s days when we can barely function. We can’t breathe, we can’t work or play outside. We have to sit inside, close the windows and keep the doors shut."

Earthjustice is representing Environmental Integrity Project along with Sierra Club, Louisiana Environmental Action Network, Coalition for a Safe Environment, and Friends of Hudson — groups in affected communities in the Gulf Coast, southern California, and upstate New York.

"This loophole allows major polluters to violate emission standards with impunity," said Earthjustice attorney Jim Pew. "We’re fighting to close this enormous loophole so communities can breathe easier."

Excess emissions occur routinely at industrial facilities throughout the country, according to a comprehensive report by the Environmental Integrity Project titled "Gaming the System: How the Off-the-Books Industrial Upset Emissions Cheat the Public Out of Clear Air." (report available at:

"Malfunctions at large petrochemical plants are routine, and sometimes release more air pollution than so-called ‘normal’ operations," said Eric Schaeffer, executive director of Environmental Integrity Project and former director of EPA’s Office of Regulatory Enforcement. "EPA and the industry want to keep these emissions out of sight, out of mind, and off the books, by hiding the procedures that industry is supposed to follow to prevent these mishaps. That’s not fair to the neighbors who live next to these plants, and have to suffer the consequences when accidents poison their air with toxic pollutants."

With more than 250 industrial sites, Texas is home to the nation’s largest number of refineries, chemical and petrochemical plants in the nation. The state is also one of a few that tracks pollutants released during startup, shutdown, and malfunction periods: according to state records, thirty facilities emitted more than forty-five million pounds of toxins in just one year during these off-the-books periods. A chart documenting recent major malfunctions at refineries in Texas is below.

"Fence line neighborhoods in Texas have been bombarded for decades with massive plumes of thick, black, toxic smoke during emissions flaring at refineries and chemical plants in periods of startups, shutdowns and even malfunctions," said Neil Carman, clean air director for the Sierra Club’s Lone Star Chapter and a former Texas state refinery inspector.

In nearby Louisiana, the problems are much the same.

"Equipment malfunctions, start up or shutdown operations are responsible for much of the 20 million pounds of air toxics emitted annually in our area," said Marylee Orr, executive director of Louisiana Environmental Action Network. "When the big flares at one of the local facilities go off it can cause significant problems in the surrounding communities."

Also being challenged in court today is a provision eliminating existing requirements that polluters have contingency plans in place to minimize toxic emissions when startups, shutdowns, and malfunctions occur. This means when major malfunctions result in massive releases of toxic material, polluters are off the hook for ensuring that it doesn’t happen again.

The importance of these backup plans was on full display in September 2005, when a power outage caused pollution and safety controls to fail at three major southern California oil refineries. For more than eight hours, the refineries belched black and yellow smoke. Last October, power to the refineries failed again, once more blanketing the Wilmington neighborhood of Los Angeles in pollution.

"These incidents could have been easily avoided had the refineries been required to prepare a contingency plan that included a backup power source during a blackout," said Jesse Marquez, Executive Director of the Wilmington-based Coalition for a Safe Environment. "Instead, EPA’s rules encourage a reckless lack of planning, subjecting communities like ours to repeat performances of major air pollution events year after year."


The lawsuit was filed in the U.S. Court of Appeals for the District of Columbia Circuit. A copy of briefs filed by Earthjustice is available at:

The Environmental Integrity Project report, "Gaming the System: How the Off-the-Books Industrial Upset Emissions Cheat the Public Out of Clear Air" is available at:

Emissions Reported During Recent Malfunctions At Select Refineries in Texas



Date of Release


Amount Released (lbs)

Point of Release

Atofina Total Petrochemicals

Port Arthur

7/22/06 to 7/23/06

Sulfur Dioxide


North, South Flare, Tail Gas Thermal Oxidizer

Atofina Total Petrochemicals

Port Arthur

8/30/06 to 11/27/06

Volatile Organic Compounds


FPM Cooling Tower


Port Arthur

7/13/06 to 10/28/06

Volatile Organic Compounds


FCCU Cooling Tower


Port Arthur

11/26/06 to 12/05/06

Sulfur Dioxide


Multiple Units & Flares

Exxon Mobil


5/23/08 to 7/19/08

Sulfur Dioxide


FCCU Flare


Source: Emissions data reported by facilities to Texas Commission on Environmental Quality. All emission reports online at:

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