On June 24, EPA proposed a consolidated rule that would remove “affirmative defense” loopholes from nearly 20 Clean Air Act regulations that have allowed industrial polluters, such as fossil fuel power plants, incinerators, chemical plants, and other industrial facilities, to dump deadly air pollution into surrounding communities during so-called “malfunction” events with impunity. The “affirmative defense” loopholes that EPA is now planning to remove have long shielded polluters from meaningful consequences for repeatedly violating pollution limits during such events, in part by making it very difficult and expensive for communities to bring enforcement cases against them.
This remarkable proposal is a direct result of Sierra Club’s advocacy and legal efforts. Sierra Club’s Environmental Law Program has led this work since 2011, when it petitioned EPA for a rulemaking to eliminate startup, shutdown, and malfunction (SSM) loopholes from state implementation plans. After President Biden was elected, the Sierra Club and our allies stepped up advocacy efforts to pressure EPA to eliminate the SSM loopholes everywhere they are found in EPA and state rules. Among other actions, we formally petitioned EPA in September 2022 to eliminate all the affirmative defense provisions (as well as other loopholes) from EPA rules. Sierra Club’s SSM team, made up of volunteers, attorneys, organizers, press secretaries, federal policy, digital, video production and campaigners twice gathered over 100 community groups to sign onto advocacy letters, and recruited community members to deliver powerful testimony, in several virtual meetings with high-level EPA and White House officials. We also produced an advocacy video and organized a fly-in where community advocates met with congressional representatives and delivered over 7,000 public comments to EPA and facilitated a letter signed by more than 2 dozen members of Congress.
Sierra Club’s SSM work is led by Environmental Law Program attorneys Andrea Issod and Joshua Smith, and closely coordinated with co-counsel at Earthjustice, and other allies. Sierra Club’s SSM team also currently includes Air Toxics lead volunteer Jane Williams, and Patrick Drupp from the Federal Policy Team.
Read more about this hard-earned victory here.