Unexpected Emission Spikes From Facilities Face EPA’s Long Game

The Biden administration is gradually eliminating exemptions for industrial facilities that have a sudden spike in emissions during maintenance or emergencies, leaving frontline communities even more vulnerable during extreme weather events.

The Environmental Protection Agency just eliminated one such exemption in rulemaking finalized on July 12, which strips affirmative defense provisions from the rule governing Title V permits for major stationary sources.

That rule is part of a broader campaign to roll back emergency or accidental emission release provisions that can shield companies from liability or compliance violations if they exceed legal limits during sudden shutdowns or malfunctions, also called SSM. The EPA hasn’t removed exceptions with one blanket rulemaking, instead removing provisions from individual rules as they reexamine them, or by forcing states to erase them from State Implementation Plans.

For the recently finalized Title V rule, the EPA said in a fact sheet that it expects states will need to adjust their own permitting rules to remove the exemptions, as well as adjust individual permits on a case-by-case basis as they come up for review.

Clean air advocates are pleased another exemption has been eliminated, but ticking away at startup, shutdown, and malfunction provisions and affirmative defense provisions is a slow, piecemeal process.

The rule “is a critical and necessary step towards safeguarding our communities—especially fenceline communities that bear the brunt of pollution—but significant work still remains,” according to a statement on the final rule from Sierra Club senior attorney Josh Smith. Fenceline communities are those in the immediate vicinity of an industrial facility.

These types of emission spikes are often branded as inevitable by regulated industry, according to Kevin Lynch, law professor at the University of Denver.

“Then on the ground they lead to continued pollution, continued violation of National Ambient Air Quality Standards, other clean air rules and regulations,” Lynch said. “It’s a big, important issue, and I’m glad to see people trying to clamp down on this.”

Regulatory Journey

The reason SSM action—which critics call an illegal loophole—seems to be popping up so frequently lately is likely because the administration is issuing and amending so many air rules, according to Andrea Issod, senior attorney at the Sierra Club Environmental Law Program.

“When they come up for review, EPA has been taking out the unlawful SSM loophole,” Issod said. “It’s a very slow process.”

State air plans and federal laws are riddled with SSM and affirmative defense provisions that were deemed appropriate when the Clean Air Act was passed in 1970, making the task of rolling back the exceptions in both EPA rules and within individual state requirements a meticulous process.

In 2015, the Obama administration issued an SSM SIP call, which required Texas, North Carolina, and Iowa to remove their SSM exemptions and affirmative defense provisions from their state implementation plans. A litigation storm ensued, and then-President Donald Trump rolled back the Obama mandate in 2020.

Under President Joe Biden, the EPA brought back Obama’s 2015 SSM policy, added more states and air districts to the mandate to remove SSM provisions, and worked to remove affirmative defense and sudden emission exemptions from reconsidered air permitting and toxics rules.

Advocates say the Clean Air Act never actually allowed for such provisions to exist, since emission limitations apply at all times. States can’t make the decision to exclude these sudden emissions from their state implementation plans because under the Clean Air Act, “district courts have exclusive jurisdiction to determine whether there’s a violation of an emission limitation” in the first place, according to Issod.

Tension and Balance

There are multiple ways a facility can release excess pollution during SSM events: during planned maintenance, or periods of emergency shutdown during extreme weather or other unforeseen events.

Certain air pollution controls need time after shutdown and startup to warm up and get back online, which can occur when a plant needs maintenance. Companies can apply for “variances” when they have plans that could affect their controls in place.

As climate change gets worse, extreme weather is forcing facilities to shut down unexpectedly, which causes unplanned explosions of emissions when facilities must flare off excess chemicals to prevent even bigger emergency situations.

The EPA advised facility operators along the Gulf Coast on Tuesday to make plans to minimize such events “as the climate crisis increases the number and intensity of storms,” according to Region 6 Administrator Earthea Nance.

During the Texas deep freeze in 2021, Air Alliance Houston clocked 3.5 million pounds of extra pollution emitted from plants that were forced to shut down with the power grids. Similar pollution dumps occurred during hurricanes Harvey and Laura. Thanks to strong SSM and affirmative defense provisions in Texas, those releases were wiped from the regulatory slate.

Peter Hsiao, partner at King & Spalding LLP, says there’s tension in the balance between mitigating sudden emission spikes and giving facilities flexible permitting during SSM. The sudden pollution is harmful to communities, but planned maintenance and flaring during emergencies also keep communities safe.

“You don’t want to have unconstrained startup, shutdowns and malfunctions, because the exception would swallow the rule,” he said. “But you do want to allow for startup, shutdown and malfunction where it makes sense.”

Since these exemptions have been in play for so long to account for things like maintenance, Hsiao says it makes more sense to fine-tune them, rather than eliminate them entirely.

“Whether it is a flood in Houston, whether it’s a hurricane or a wildfire, one size doesn’t fit all, you really have to look at the specific facility and the specific facts,” Hsiao said.

Climate Connections

As extreme weather becomes more common, environmentalists and public health experts insist that the onus is on the companies to improve their operations.

This idea is being tested in courts outside of SSM, in climate litigation against energy companies with terminals on east coast rivers.

The Conservation Law Foundation is still fighting cases against Shell and Exxon over their petrochemical storage facilities in Massachusetts and Rhode Island, claiming that the oil giants have not insulated their operations against climate impacts on rivers like flooding and rising waters.

The companies allege that the group’s claims are just speculative at this point, and don’t amount to real harm. But the judge in Shell’s case at the U.S. District Court for the District of Connecticut said in 2022 that the conservation group’s “threatened injuries are not purely theoretical,” ruling to keep the litigation in play.

“Disasters are happening more frequently and causing SSM events,” Issod said. “And then you have all of these plants having malfunctions and there’s no consequences for them, and there’s no incentive for them to improve their practices.”

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.