EPA Reverses Rule That Curbed Power Plants From Releasing Toxins in Communities of Color

By Ayana Byrd May 07, 2019

In 2015, the Environmental Protection Agency (EPA) issued a directive known as the Startup, Shutdown and Malfunction Rule (SSM). It stated that in Texas and 35 other states, industrial facilities had to follow legal guidelines when shutting down a plant, instead of claiming a loophole that allowed them to do it in a matter that releases tons of toxic air. Last week (April 29), the Trump administration’s EPA filed an order to reverse this rule, putting the communities that live nearby at increased health risk.

During extreme weather events, such as hurricanes and flooding, power plants are often forced to shut down. ThinkProgress reports that before the 2015 rule, “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.”

Called an “affirmative defense,” power plants in Texas used the loophole in 97 percent of the cases when they were accused of defying the EPA rule, according to the Texas Commission on Environmental Quality. This included those that released 2,000 tons of sulfur dioxide and other volatile organic compounds into the air in Houston during Hurricane Harvey.

As Colorlines previously reported, lower income communities of color in Houston were located near petrochemical plants that were at risk of overflowing during the hurricane. Nationwide, communities of color are disproportionately more likely than White ones to be located near power plants, meaning that the people there face increased health risks as a result of this loophole.

When the rule was passed, Texas responded by filing a lawsuit against the EPA. Texas claimed the order “make[s] it impossible for even the most carefully-regulated facilities to avoid costly penalties due to unplanned events out of their control.”

The lawsuit prompted Andrea Issod, a senior staff attorney with the Sierra Club’s Environmental Law Program, to write a blog post that read in part:


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. 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.

Hilton Kelley is an environmental justice activist who lives in Port Arthur, a majority-Black and Latinx town that is located in what is called Texas’ “Cancer Belt.” He is also the founder and director of Community In-Power and Development Association, which educates residents of Port Arthur about the toxic air in their city and seeks to empower them to fight it. In response to the reversal of the SSM rule, he told The Texas Observer, “Every day we have to deal with the start-up emissions, the shutdown emissions, the incidental emissions. I mean, it’s killing us. Looks like we’re gonna have to go back to [Capitol] Hill.”