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Published April 2, 2012 5:45 pm

Don't let polluters off the hook
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

If you can imagine a police officer just walking away from the still-smoldering remains of a three-car pile-up on the grounds that none of the bleeding bodies involved intended to crash, then you can grasp the idea of allowing big industrial operations to avoid sanctions over "unintentional" releases of air pollutants.

The federal Environmental Protection Agency is leaning on Utah — because a federal court has been leaning on the EPA — to close what environmental activists call a loophole in the Utah Department of Environmental Quality's "unavoidable breakdown rule."

Now, when one of Utah's 1,200 big industrial operations sees more-than-allowed amounts of pollutants leaking into the air for more than two hours, the polluter has to report to the DEQ what happened, why, how much pollution was released and what the company plans to do to prevent similar incidents from happening again. It is a rule that has been in place in Utah, the DEQ says, for more than 30 years, and has been approved by the EPA many times.

But a suit brought by the group WildEarth Guardians argued, well enough to get an order from a federal judge, that the Utah rule amounts to a freebie for polluters. It allows them to avoid citations for violating federal law just by claiming they didn't mean to poison the air this time.

And, in most cases, they probably didn't. Just as the driver who followed too closely, failed to signal when changing lanes or paid more attention to his cell phone than to that stoplight clearly did not intend to collide with that other car or take out that pedestrian in the crosswalk. Try talking your way out of a moving violation with that argument.

The EPA is now taking the position that every release of air pollutants that exceeds an individual source's permit ought to be regarded as a violation, even if the polluter could make a valid case that the incident was indeed an accident, caused by an equipment breakdown, power outage or other unavoidable set of circumstances.

The EPA's new thinking is that it would be far too easy for the DEQ to agree that an incident was "unavoidable," and file it all away. It would be better, the new thinking goes, to issue the kind of Clean Air Act citation that would give the facility in question a large financial incentive to do what was needed, and spend what was necessary, to "avoid" a repeat.

The state should go along with this new approach and call violations what they are.

The tendency of regulators and the regulated to get overly chummy is too great to allow air pollution violations to be brushed off with a simple, "Ooops! Sorry."




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