EPA’s regulatory rollback would ensure that in disasters like Harvey, pollution is worse

A loophole allows refineries to unleash unlimited pollution during shutdowns.

The Flint Hills Resources oil refinery near downtown Houston on Tuesday, Aug. 29, 2017. CREDIT: AP Photo/D1avid J. Phillip
The Flint Hills Resources oil refinery near downtown Houston on Tuesday, Aug. 29, 2017. CREDIT: AP Photo/D1avid J. Phillip

As both Oklahoma attorney general and Environmental Protection Agency administrator, Scott Pruitt has fought against the implementation of a federal rule that requires industrial facilities and power plants to follow air pollution rules when they are starting up, shutting down, or undergoing maintenance.

The lack of regulations forced residents in the Houston area to breathe in toxic fumes from rapidly shuttering facilities, even as Hurricane Harvey flooded their city. Along the Gulf Coast of Texas, at least 25 plants were either shut down or experienced production issues due to Hurricane Harvey’s severe weather and flooding, causing large releases of toxic pollutants that pose a threat to human health, The New Republic reported.

The shutdown of oil refineries and damaged fuel facilities along the Gulf Coast of Texas have released more than two million pounds of dangerous chemicals into the air this week. The toxic releases include carcinogenic benzene and nitrogen oxide, which are expected to cause long-term health risk for residents.

Environmental groups have long sought to end pollution exemptions granted to these facilities. In 2015, the Obama administration’s EPA issued a rule “to ensure states have plans in place that require industrial facilities across the country to follow air pollution rules during times when the facility is starting up or shutting down, or when a malfunction occurs.” The rule is currently in place, but most refinery owners have not yet put measures in place to limit emissions from their facilities, even in notoriously flood-prone areas.

They might never have to.

After the rule was finalized, Pruitt, as attorney general, immediately sued the EPA to block its implementation. And now as EPA administrator, he is considering whether to rescind the rule. In April, Pruitt asked a federal court to delay oral arguments in a legal case challenging the rule as he mulls the rule’s future. In response to the request, the court issued an order indefinitely delaying oral arguments and putting on hold litigation over the rule known as the “Startup, Shutdown and Malfunction Rule” (SSM).


“The SSM rule is an important public health protection that holds polluters accountable for massive pollution bursts that disproportionately impact low-income communities and communities of color who live around industrial plants,” Andrea Issod, a senior staff attorney with the Sierra Club’s Environmental Law Program said in a blog post. “For far too long, polluters in certain states have taken advantage of SSM loopholes that allow unlimited amounts of harmful air pollution to be spewed into neighboring communities during regularly occurring startup, shutdown, or malfunction events.”

When refineries go into shutdown mode, “it’s a dirty burn,” according to Bryan Parras, an organizer with Texas Environmental Justice Advocacy Services (Tejas). “That adds thousands of pounds of cancer causing chemicals to the air,” he said. Tejas is a nonprofit group that works on issues with communities located next to industrial facilities.

Until the rule was finalized in 2015, a loophole in EPA regulations meant that refineries and power plants could unleash unlimited pollution during these times, meaning that the communities that live near these facilities  were subject to emissions that could be 10 times the level typically allowed to be released by power plants.

Given the fact the Obama administration finalized the rule, any attempt by Pruitt to repeal it will need to go through a rulemaking process that could take a year or more, although it is likely that the EPA wouldn’t enforce the rule during this time.


In the rule, the EPA concluded industrial facilities and power plants must be in compliance with all emission limits all the time. The agency identified state implementation plan provisions in 36 states — including Texas — that needed to be changed because they allowed sources to exceed emission limits during these periods. The rule required the removal of those provisions that allow sources to operate out of compliance during these periods.

Reopening the rule “flies in the face of Pruitt’s lip service to regulatory certainty,” the Sierra Club’s Issod said. The rule required states to fix the exemptions by proposing revised rules to the EPA by November 22, 2016. Two years into the process, states have invested time and effort into revising their rules, she added.

Meanwhile, on Wednesday, the EPA extended an emergency waiver of Clean Air Act restrictions on motor fuel requirements for Texas and 11 other states and the District of Columbia through September 15. The fuel waiver was issued to help ensure an adequate supply of fuel throughout the South, Southeast and the Mid-Atlantic, the EPA said.  

The move, prompted by Hurricane Harvey, declares an early end to summer regulations designed to prevent a buildup of ozone pollution, which contributes to lung disease and asthma. The regulations require oil companies to use low-volatility gasoline during the summer months to prevent gasoline from turning to vapor. Pruitt, in coordination with Energy Secretary Rick Perry, issued the waiver under the authority of the Clean Air Act.