Closing the Clean Air Act Loopholes


When the U.S. Environmental Protection Agency (EPA) originally approved the states’ plans to implement the federal Clean Air Act, the agency inadvertently approved a loophole to emission limits. Specifically, in many of the state plans, polluters did not have to comply with their emission limits during startups, shutdowns, malfunctions and maintenance (SSM) events.

EPA was overwhelmed and inexperienced when originally approving all these plans in the early 1970s and simply missed the opportunity to reject these SSM loopholes. However, since at least 1977, EPA has been consistently on record as saying the SSM loopholes in the state plans are illegal.

The reason should be obvious. People breathe all the time, and therefore need clean air all the time. If emission limits apply only part of the time, they are incompatible with human and animal life. The very foundation of the Clean Air Act is to provide people with air that won’t make them ill or die. Oddly enough, the Clean Air Act says that sources of pollution only have to follow the rules set out in states’ plans, even if the states’ plans violate the Clean Air Act. Luckily, however, the Clean Air Act has a mechanism to fix plans that violate the Clean Air Act.

As of 2012, about a third of the states did not have SSM loopholes in their state plans, but about two-thirds did. In response to a request from the Sierra Club — backed by 37,000 public comments — EPA recently invoked the mechanism to fix the SSM loophole.

Fixing the loopholes is a two-step process. First, EPA tells each state to fix its SSM loopholes. Then, the state actually does it, through a process that involves an opportunity for the public, including supporters of renewable energy and energy efficiency (RE/EE), to comment on the proposed fix. RE/EE advocates should take this opportunity, which will occur in the various states over the next two years.

The SSM issue provides an opportunity to let the benefits of RE/EE shine. It is an opportunity to demonstrate that, for example, the pollution-free nature of solar and wind power is 24/7, 365 days a year. In contrast to this consistent and predictable state of zero air emissions, fossil fuels cause inconsistent and often unpredictable air pollution that endangers people’s health and their very lives.

Robert Ukeiley ( is a lawyer who represents environmental nonprofits in Clean Air Act litigation affecting energy issues.

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