EPA to Cut Loophole on SSM Rule for Factories

September 4, 2013

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When the Environmental Protection Agency (EPA) was created more than 40 years ago, it established  many rules whose full consequences couldn't possibly be known at the time. There have been so many advancements in technology that affect the environment that the agency has been forced to become an ever-changing entity, constantly adapting its rules and guidelines, as well as keeping on top of those that are being misused or ignored.

One policy from the early days of the EPA and the Clean Air Act has come under great scrutiny recently from normally such EPA-friendly groups as the Sierra Club and the Natural Resources Defense Council (NRDC): the SSM Rule. 

SSM stands for "start-up, shut-down, and malfunction," and the original rule stated that while industries had to meet a certain guideline for the amount of toxins released into the air during normal operations, they were allowed to exceed that limit when the plant was starting up, shutting down, or malfunctioning.

Over the past few decades, companies have taken advantage of this exemption. The result is that toxins are being released at five to 10 times their normal level, creating unsafe living conditions for people in places like Michigan and Louisiana, just to name a few.

A new proposed EPA rule would close loopholes to the SSM rule, forcing industrial facilities to adhere to strict emissions standards. Credit: EIP.com

A new proposed EPA rule would close loopholes to the SSM rule, forcing industrial facilities to adhere to strict emissions standards. Credit: EIP.com

"One of the families I talked to lived in Detroit, and the blasts from the 'malfunctions' were so powerful that it shook her ceiling roofs and she had trouble breathing when going outside," said Terry McGuire, an associate representative with the Sierra Club. "This factory was having malfunctions 5-10 times a day, and there's no way you could stay in a legitimate business if your machines were truly breaking all that much. People who live near these factories know what the normal procedure is, and they're not complaining about that. But what's happening now with these malfunctions is just unacceptable."

To combat companies from abusing the SSM rule, the EPA has come up with a proposal to close the loopholes, and requiring 36 states to follow them or face sanctions. (14 states were found to have laws regarding SSM that were sufficiently strict and had no loopholes).

The EPA's rule, outlined here, states that the agency's actions would "address outdated provisions, improve national consistency and provide clarity for the treatment of emissions that occur during SSM."

The new EPA rule will allow companies to defend and prove why they were in SSM mode when faced with "circumstances beyond their control" and would shield a facility from monetary penalties, but not from the responsibility to take action to limit future problems."

The EPA provision also gives a state 18 months to correct and fix their loophole-filled legislation or face further action, including a Federal Implementation Plan, which would basically allow the EPA to impose its rule.

"The minimum criterion under federal law is not being met," said John Walke, the NRDC's clean air director. "The law requires that all air pollution limits must be complied with continuously without loopholes or categories, and that's just not occurring. We only want the companies to emit the toxins that they're allowed to by their permits and regulations; that's all."
The SSM rule has been the subject of legal battles for at least the past decade, and one of the biggest crusaders on behalf of closing the loopholes has been James Pew, a Washington-based lawyer for Earth Justice, an environmental advocacy group.
"The way some companies behave makes a joke out of the rule that polluters have to keep toxins to a certain level," he said. "If they go above those levels, they could just say 'Oops, there was just a malfunction,' and not face consequences."
Pew pointed to a study done by the Environmental Integrity Project in 2007 that found that some companies in Texas claimed to be in "malfunction" mode 40 percent of the time. "Do you know any company that can fail that often and still stay around?" Pew said. "It's ridiculous."
Walke added that the economic benefits for a company to exceed pollution regulations are many. "A poorly maintained plant is cheaper to operate," he said. "We've seen some horrifically bad accidents like at BP in Texas, when a refinery blew up. And if you're working your machines and polluting more, you could increase productivity and be more efficient, and that will help your bottom line in the long run."
 
Pew and Earth Justice, along with the Sierra Club, sued the EPA in 2008 to get the agency to close loopholes involving hazardous air pollutants (HAP) from SSM. The courts agreed, and 180 pollutants that are in the Clean Air Act were no longer exempt from industrial SSM rules. "But the ruling was specific and didn't rule on standard, conventional pollutants, like sulfur dioxide or particulate matter," Pew said.  "At most, the ruling applied to about one-third of all the pollutants that these companies emit. Hopefully with the new regulation, the EPA will cover the remaining two-thirds."
Several environmental groups met with White House officials and the White House Office of Environmental Equality two weeks ago, urging them to support the new EPA regulations.
"Some of these plants put out an entire year's worth of pollution in a few hours, and when you talk to these families affected, you really see how bad it's been," Walke said. "In Louisiana, Texas, and Michigan especially, the oil refineries and chemical companies have been getting away with reckless behavior for years."
The EPA's proposed changes have received 50,000 comments during the "public comment" period.

"The best-case scenario is that the rules are implemented on time, and the states make the necessary corrections there without having to be forced to," Walke said. "The reason normal people should care about all this is that once polluters and communities are sure that companies are breaking the law, they will be required to make changes and our air will be cleaner, and people won't have to inhale so many pollutants."

Pew, who's been fighting this fight for years now, isn't sure the 36 states will be in full compliance quickly.

"The EPA will set a level on a national emissions standard for particulate matter, and each state government has to figure out how to get there, but there's no telling how long it will take each state to make their changes," he said. "The key will be the EPA truly following up and seeing that the law is adhered to."

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