Citizens' Groups Score Air Pollution Court Victory


Polluter loophole obliterated by federal court decision


Jim Pew/Kathleen Sutcliffe, Earthjustice, (202) 667-4500

Citizens’ groups succeeded in closing a gaping air pollution loophole with a win in federal court today.

The groups, represented by the public interest law firm Earthjustice, were fighting a regulation adopted by the Environmental Protection Agency (EPA) that has allowed 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. And some facilities evade clean air protections by claiming that they are in startup, shutdown, or malfunction mode during much of their operating time.

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.

The plaintiffs in the case were 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.

“For more than a decade polluters have relied on this loophole at the expense of neighboring communities,” said Earthjustice attorney Jim Pew. “Today’s victory is a big win for the people in these communities, who can now 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.” 

“Under this notorious EPA exemption, industrial facilities have been allowed to operate like a fleet of junk cars parked in neighborhoods while spewing blue smoke, misfiring, backfiring, stalling, and chugging,” said Marti Sinclair, Chair of Sierra Club’s Clean Air Team. “This court ruling provides a ray of hope for those neighborhood who have been rendered helpless as dark angry clouds of uncontrolled toxic pollution have rolled over their homes from poorly maintained and poorly operated facilities.”

Citizens of the state of Texas stand to benefit from today’s ruling. 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.

“Citizens will be able to breathe cleaner air with greatly reduced levels of toxic chemicals released, especially people living in the fence line neighborhoods near Texas’ refineries and chemical plants where start-up, shutdown and maintenance emissions have been a huge pollution problem for decades,” said Neil Carman, clean air director for the Sierra Club’s Lone Star Chapter and a former Texas state refinery inspector.

In nearby Louisiana, where some 20 million pounds of air toxics are pumped into the air each year, groups also applauded the victory.

“When the big flares at one of the local facilities go off signaling a malfunction, it can cause significant air quality problems in the surrounding communities,” said Marylee Orr, executive director of Louisiana Environmental Action Network. “This court win will make a big difference for people in these neighborhoods.”

The loophole’s potential for abuse 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.

“This is just the latest example of a court striking down yet another attempt by the Bush EPA to gut the Clean Air Act,” said Sierra Club Senior Attorney David Bookbinder. “It’s a good thing that inauguration is right around the corner, because we’re beginning to lose track of the number of such decisions.”

Additional resources:

Read the decision (PDF)

Read the Environmental Integrity Project report, “Gaming the System: How the Off-the-Books Industrial Upset Emissions Cheat the Public Out of Clear Air”

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.  

Additional Resources

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