Dangerous Loopholes Allow Facilities to Release Toxic, Unchecked Air Pollutants

Groups petition EPA to close Clean Air Act loopholes for startup, shutdown, malfunction events


Erin Fitzgerald, Earthjustice, efitzgerald@earthjustice.org

Today, 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. These exemptions 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 are illegal.

SSM events happen frequently, but particularly after natural disasters, which are intensifying due to the climate crisis. During SSM events, industrial facilities, sited mostly in Black and Latino communities, release pollutants at significantly higher levels than during normal operations and, thanks to SSM loopholes, do so with impunity. These pollutants may include soot (also known as particulate matter), sulfur dioxide, hydrogen sulfide, carbon monoxide, and other toxic chemicals that when combined form ozone smog. For workers and families near the facilities that use these loopholes, the cumulative impacts of pollution are serious, and increase the risk of various cancers, asthma, and other respiratory ailments, as well as heart attacks, and even early death.

“Industrial facilities across the country start up, shutdown, and malfunction repeatedly. When they do, they use illegal loopholes to spew out tons of harmful air pollution into neighboring communities with impunity,” said Earthjustice attorney Seth Johnson. “EPA must immediately close SSM loopholes. Communities are counting on EPA to protect their health and improve their quality of life.”

Under the Administrative Procedure Act, federal agencies must give interested persons the right to petition for the issuance, amendment, or repeal of a rule. This petition requests the agency close loopholes in “new source performance standards.” These standards apply to a wide range of new and modified sources of air pollution, including coal-fired power plants, oil and gas infrastructure, petroleum refineries, and incinerators.

The petition was submitted by the Sierra Club. Groups joining the petition include Earthjustice, 350 New Orleans, Air Alliance Houston, Clean Air Task Force (CATF), Downwinders at Risk, Environment Texas, Environmental Integrity Project (EIP), Green Army, Ironbound Community Corporation, Natural Resources Defense Council (NRDC), RESTORE, RISE St. James, and Southern Environmental Law Center (SELC).

Additional Resources

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.