Court Strikes Down Toxic Loophole for Cement Plant Pollution

Ruling means less mercury and other toxic air pollution will be emitted


Liz Judge, Earthjustice, (970) 710-9002


Bill Freese, Huron Environmental Activist League, (989) 464-2689

The U.S. Court of Appeals for the D.C. Circuit has struck down an EPA-created loophole that would have made limits on toxic air pollution from cement plants harder to enforce. When the U.S. Environmental Protection Agency wrote the cement plant rule, it invented an “affirmative defense” that allowed plants that violate emission standards to escape having to pay penalties as long as they claimed the violation resulted from a malfunction.

“The court’s decision rightly tells polluters they won’t get a free pass when they spew uncontrolled toxic emissions into the air we breathe,” said Seth Johnson, Earthjustice attorney. “The communities who have been burdened by excess mercury, particulate matter, and other hazardous air pollution that plants blame on ‘malfunctions’ can now rest assured that plants won’t have a license to emit pollution at will.”

“With this ruling and Lafarge’s compliance with the recent legal ruling we here in Northeast Michigan are looking forward to a safer environment and the cleanest air in over 20 years,” said Bill Freese, director of Huron Environmental Activist League.

“The demise of the ‘affirmative defense’ will encourage cement plants to invest in effective pollution control technology, and that is a very positive step toward strengthening public health,” said Jennifer Swearingen, board member of Montanans Against Toxic Burning.

“We are so relieved that the court has acted to protect the public’s health by striking down a ‘malfunction loophole’ for cement plants, that would have allowed uncontrolled toxic emissions,” said Jim Travers of Albany-based Citizens’ Environmental Coalition.

The court’s ruling is especially significant because by revoking the “affirmative defense” policy that lets plants dodge liability for exceeding emissions limits, this decision sets a precedent for how the EPA drafts air safeguards moving forward. The Clean Air Act allows people who are affected by illegal air pollution to hold polluters accountable by having courts impose penalties on them.

For decades, the EPA allowed polluters to dodge these penalties because it said plants didn’t have to meet standards when they claim to have malfunctioned. After Earthjustice got that policy thrown out in 2008, the EPA tried to create this new “affirmative defense” version of it. Now the EPA—and polluters—are on notice that standards have to be fully enforceable.

With its partner organizations, Earthjustice has worked on securing effective and enforceable safeguards against cement plant pollution for more than a decade. In this suit, Earthjustice represented Sierra Club, Cape Fear River Watch (NC), Citizens’ Environmental Coalition (NY), Desert Citizens Against Pollution (CA), Downwinders at Risk (TX), Friends of Hudson (NY), Huron Environmental Activist League (MI), Montanans Against Toxic Burning (MT), and PenderWatch and Conservancy (NC). Natural Resources Defense Council was also a petitioner.

Read the decision.

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