Supreme Court Refuses to Hear SSM Exemption Case

The U.S. Supreme Court chose not to review a decision by the U.S. Court of Appeals for the District of Columbia Circuit in American Chemistry Council v. Sierra Club.

According to Earthjustice, which represented the community groups, the circuit court decision closed the "startup, shutdown and malfunction" exemption that effectively allowed major industrial polluters to exceed emissions standards whenever they claimed that their equipment malfunctioned.

The community groups in December 2008 won the appellate court case against the U.S. Environmental Protection Agency. Following that decision, EPA did not seek Supreme Court review, but American Chemistry Council and other major industry groups that had intervened in the case did.

"We're pleased that the court has finally put an end to this litigation," said Earthjustice attorney Jim Pew. "This air pollution exemption has caused terrible suffering in thousands of communities. No one disputes that it's illegal. Under the Obama administration, EPA has already committed to rethink this loophole, and we look forward to working with the agency to bring relief to overburdened communities as soon as possible."

Citizens of Texas are among those who will benefit from the decision. With more than 250 industrial sites, the state is home to the nation's largest number of refineries, chemical and petrochemical plants in the nation. It also is one of a few that tracks pollutants released during startup, shutdown, and malfunction periods: according to state records, 30 facilities emitted more than 45 million pounds of toxins in just one year during these off-the-books periods.

"Startups, shutdowns and malfunctions create some of the highest volumes and worst toxic air pollution released by large industrial factories, and nearby communities suffer the horrible impacts of the chemicals dumped into their air supply," said Neil Carman, clean air director for the Sierra Club's Lone Star Chapter and a former Texas state refinery inspector.

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