Excess gas and resultant pollution flaring off during an SSM event at the Calumet oil refinery in Shreveport, Louisiana.
Today the EPA issued a much-needed, long-overdue public health safeguard that marks the beginning of the end of regulatory loopholes in 36 states that have for decades allowed big polluters to dump huge amounts of harmful air pollution onto neighboring communities with impunity.
The new Clean Air Act rule -- called the Startup, Shutdown, and Malfunction (SSM) Emissions rule -- will help protect some of society's most vulnerable communities from big polluters. The rulemaking reflects many years of hard work from citizen and environmental groups and legal advocates across the country, and stems from a 2011 Sierra Club petition urging EPA to initiate a rulemaking to redress the widespread problems. The new SSM rule does just that by requiring states to fix the unlawful loopholes in their state rules implementing the Clean Air Act that exempt massive amounts of pollution during SSM events from regulation or allow polluters to avoid any legal consequences for such emissions.
Even when large industrial facilities are complying with their permitted limits, fence-line communities near large coal plants, refineries, and other heavy industrial plants -- often low-income communities of color -- are disproportionately overburdened with air pollution, asthma and all the health problems that go along with dirty air.
Even worse, when a facility is coming online, shutting down, or experiences a malfunction, the protections of the Clean Air Act are thrown aside and the facility is given a free pass to emit huge amounts of pollution. When facilities are in these “upset” modes, the pollution is off the charts because the SSM loopholes allow industry to turn off pollution controls that normally limit emissions. As a result, many facilities pump out much more pollution during these periods than during the course of its normal operations for the entire year.
Modern pollution controls and better management practices can dramatically reduce pollution during upset events, but because of the SSM loopholes, industry has not had an incentive to adopt these measures. Companies who care about their neighboring communities have shown that industry can do better. The new SSM rule will give industry the push it needs to adopt better practices and technologies to help reduce the pollution burden that falls on the shoulders of vulnerable communities.
A plant can turn off its controls during an upset but children and elders with asthma can’t hold their breath during these events, which can last for days. One community highlighted in Sierra Club’s comments on EPA’s Proposed Rule lies near the Calumet Refinery, where a resident describes sulfur and chemical smells from malfunction events called flaring that cause burning sensations in the nose and throat, nausea, and other symptoms that can last for days. She has often awakened in the middle of the night to a loud, roaring noise, and the flaring sometimes coats her home and skin in soot that is difficult to wash away. Residents in a heavy industrial area in the east end of Texas bear witness to flaring events that last for days, booms and unbearable odors. These community members often feel nauseous and experience terrible headaches, burning sensations, and flu-like symptoms after flaring, described further in Sierra Club’s comments on EPA’s Supplement to the Proposed Rule.
Because of the loopholes that the new SSM rule requires states to fix, polluters have not been held accountable for these excessive pollution events. Some loopholes known as exemptions wholly ignore emissions during upset events or give state officials discretion to rubber-stamp permit violations so that citizens cannot enforce the laws that are on the books. These exemptions eviscerate the ambient air quality standards -- one of the most fundamental safeguards of the Clean Air Act to protect public health. State permitting programs that restrict pollution from large industrial facilities to levels that will not exceed those health-based standards are a critical piece of maintaining safe air quality. Ignoring the huge category of emissions during upset events makes a mockery of the entire regulatory system because there is no check on whether upset emissions are violating standards or the facility’s permits. Even short periods of exposure to pollutants like sulfur dioxide can have significant health impacts including impaired lung function, aggravation of asthma, and respiratory and cardiovascular disease.
The second type of loophole closed by EPA’s rule -- the affirmative defense -- allows polluters to avoid any liability for upset events, even where the violations are egregious and avoidable. In a recent Sierra Club case, Exxon used affirmative defenses to avoid any responsibility for failing to prevent more than 4,000 separate “upset” events –- an average of more than one a day for eight years –- that each resulted in the release of illegal pollutants from its Baytown Complex in Texas. In another case, a Texas court found that no violations occurred at Luminant’s Big Brown coal-fired power plant despite more than 6,500 self-reported exceedances of its permit limits.
Affirmative defenses are inconsistent with the Clean Air Act, as recently confirmed by the U.S. Court of Appeals for the D.C. Circuit, because the Act gives citizens the right to have a court determine whether violators should be penalized for not taking reasonable precautions to avoid upset events that cause terrible impacts on the surrounding community’s quality of life and well-being. Of course, courts will not impose penalties for truly unavoidable and unforeseeable violations.
The EPA’s action is just the beginning of a long road ahead until fenceline communities can finally breathe cleaner air. The rule establishes a deadline of November 22, 2016, for states to propose fixes to their rules that are consistent with the statute.
It will come as no surprise that some states and industry groups may challenge the final rule so that they can keep violating their permit limits and the law. Communities surrounding large polluters have waited long enough. Let’s hope for their sake that the rule’s current timelines stay in place while the rule is litigated.