EPA to Review Air Toxics Loopholes Covering Oil Refineries and Petrochemical Plants

Dangerous “malfunction” loopholes allow industry to emit toxic air with impunity


Erin Fitzgerald, Earthjustice, efitzgerald@earthjustice.org

The Environmental Protection Agency (EPA) said in court filings this week it will reconsider the national air toxics standards covering petroleum refineries and ethylene production sources, also known as ethane crackers, which contain dangerous loopholes allowing the release of toxic air. Rather than ensuring these major industrial facilities do all that is needed to prevent emissions related to foreseeable incidents like storms, loss of power, or severe weather, these loopholes allow refineries and petrochemical plants to release uncontrolled cancer-causing air pollution, by claiming a malfunction and avoiding accountability due to a so-called “force majeure event .”

EPA’s reconsideration of these standards stems from petitions and lawsuits Earthjustice filed on behalf of dozens of community and environmental groups.

“Communities near refineries and ethylene plants have faced years of air pollution that is especially toxic for children, while industrial facilities have failed to prepare effectively for storms and severe weather made worse by climate change. The Biden administration and EPA Administrator Regan are taking an important step toward fulfilling their promises on public health and environmental justice,” petitioners said in an Earthjustice statement. “We call on EPA to issue strong new action that ends these dangerous malfunction loopholes. Communities near refineries and chemical plants should be protected from industry’s toxic air all the time, as the Clean Air Act promises.”

“Force majeure” loopholes are yet another version of the so-called Startup, Shutdown, Malfunction, or SSM loopholes, that the D.C. Circuit has repeatedly found illegal. The Clean Air Act requires air pollution limits to be continuous to protect clean air and public health. Refineries and petrochemical facilities are more often located in communities particularly vulnerable to pollution and worsening storms related to climate change.

EPA has in recent months started removing similar exemptions and loopholes from other air rules, but this represent EPA’s first recognition that it must address the newest type of SSM loopholes in air toxics rules under the current administration. Ending industry’s ability to pollute with impunity through loopholes is critical to protect the health of children, who are more susceptible to toxic chemicals, and to protect the health of low-income and communities of color.

EPA will take public comment on proposed rules, and the cases are expected to be on hold pending EPA’s new actions. EPA says it is also considering all other issues in the petitions, which include protecting communities, especially children, from the cumulative health risks of industrial hazardous air pollution, and to expand fenceline monitoring requirements for polluters. 

Earthjustice represents Community In-Power & Development Association, Air Alliance Houston, California Communities Against Toxics, Clean Air Council, Coalition For A Safe Environment, Del Amo Action Committee, Environmental Integrity Project, Louisiana Bucket Brigade, Texas Environmental Justice Advocacy Services, Utah Physicians for a Healthy Environment, RISE St. James, Louisiana Bucket Brigade, Louisiana Environmental Action Network, Texas Environmental Justice Advocacy Services, Center for Biological Diversity, and Sierra Club.

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