Larisa Manescu, larisa.manescu@sierraclub.org
Zahra Ahmad, zahmad@earthjustice.org
WASHINGTON, D.C. - Last week, EPA announced a proposal to close loopholes in nearly 20 Clean Air Act regulations that allow industrial polluters – such as fossil fuel power plants, incinerators, chemical plants, and other industrial facilities – around the country to dump deadly air pollution with impunity into surrounding communities.
The loopholes at issue are “affirmative defenses” that allow polluters who violate emission limits for harmful air pollution to escape liability for civil penalties on the basis that the violation resulted from a purportedly unavoidable malfunction. In reality, these affirmative defenses shield polluters from any meaningful consequences for repeated violations. The affirmative defense loophole also is illegal, as the D.C. Circuit has repeatedly held since 2014.
Environmental and community organizations formally petitioned EPA in September 2022 to eliminate nearly 100 exemptions from Clean Air Act requirements, noting that in 2014, EPA had granted a petition Earthjustice filed on behalf of Sierra Club asking EPA to remove all “affirmative defense” loopholes from EPA’s air pollution regulations.
During SSM events, industrial polluters can release more harmful air pollution during a single pollution spike than they’re legally allowed in an entire year, without consequences or reporting requirements. SSM events occur throughout the year, but are common during disasters, like hurricanes in the Gulf, and could get even worse as climate-fueled storms become more intense.
As long as these loopholes exist, fenceline and downwind communities can be exposed to nearly limitless amounts of soot, smog, and toxic chemicals including ethylene oxide, hydrogen cyanide, hydrofluoric acid, sulfuric acid, and other carcinogens and neurotoxicants.
In response to the EPA proposal, Sierra Club and Earthjustice released the following statements:
Sierra Club Senior Attorney Andrea Issod:
“Closing these pollution loopholes is a significant cause for celebration. Communities have suffered far too long under major SSM events that dump a toxic mix of pollution into their air. Eliminating these loopholes will ensure that industrial polluters are held accountable and denied their free passes to pollute.”
Earthjustice Attorney Seth Johnson:
“Malfunction loopholes are illegal. And malfunction loopholes invite abuse. For decades, industrial polluters have exploited illegal loopholes like the ones EPA proposes to remove to spew out tons of harmful air pollution into neighboring communities with impunity. This action from EPA to close the affirmative defense loophole that courts have repeatedly rejected will directly improve people’s quality of life.”
About the Sierra Club
The Sierra Club is America’s largest and most influential grassroots environmental organization, with millions of members and supporters. In addition to protecting every person's right to get outdoors and access the healing power of nature, the Sierra Club works to promote clean energy, safeguard the health of our communities, protect wildlife, and preserve our remaining wild places through grassroots activism, public education, lobbying, and legal action. For more information, visit www.sierraclub.org.