Federal environmental regulators are cracking down on the Utah air-quality rules that cover times when companies release unplanned pollution.
If the state Division of Air Quality cannot fix its regulation in a year, the U.S. Environmental Protection Agency can restrict new building in high-pollution areas and even block federal highway funds statewide. But Utah officials and the EPA say they are trying to find a workable solution before it comes to that.
"It's our expectation, we'll have this resolved before those sanctions would be triggered," said Carl Daly of EPA's air office in Denver.
Jeremy Nichols, who works with the environmental group WildEarth Guardians, is applauding the crackdown. The group sued the EPA to force it to close what it calls a state loophole that gives Utah's 1,200 air-pollution permit holders a "blanket exemption to clean-air limits" when their plants have "unintentional breakdowns."
"It puts the state in a position where it's difficult to enforce" the Clean Air Act, Nichols said.
"This is people's clean air at stake."
Utah air regulators have been talking with the EPA and companies with air permits for more than five years about how best to bring the state regulation in line with the Clean Air Act. The court has given the EPA until February to force the state to bring its law in line.
The main area of disagreement is over whether a violation is automatic when a power plant, refinery, cement maker or other source of regulated emissions releases excessive pollution during a breakdown.
Businesses like Utah's approach because it gives them an opportunity to explain their reasons before being accused of a violation. But the EPA and environmentalists say Utah's rules make it hard for the public and regulators to keep tabs on those excess-pollution emissions and enforce the federal clean air law.
The breakdowns case is not the only one in which environmental groups have successfully forced the EPA to bring Utah's air laws in line with federal ones. Similar court-ordered deadlines have been imposed on problems with particulate matter, smoke-management and other state regulations that are out of sync with federal law.
Since the state Division of Air Quality has agreed to carry out the federal Clean Air Act, the EPA has to make sure that the state's efforts are on par with federal requirements.
Cheryl Heying, director of Utah air programs, noted the deadlines are tight for meeting the EPA's requirements. The state has a year to come up with an acceptable regulation once the EPA fields public comment and makes a final decision about how to proceed.
In the event that the EPA can't legally accept Utah's proposed fix, sanctions would be phased in, with pollution-reduction constraints on new construction of buildings that add significant pollution. And, if the disagreement isn't settled within six months, federal highway funding worth roughly $200 million to $215 million a year, according to the Utah Department of Transportation could also be restricted.
"We've got to go through the process and gather input," Heying said, noting that transportation, industry and government representatives will all be at the table.
State regulators have estimated in the past that there are between 20 and 40 times a year when companies report pollution from breakdowns.
Daly said the Clean Air Act requires the state to stay within a "budget" to limit air pollution, on a day-to-day basis as well as during unusual situations when a pipe breaks or pollution equipment fails. States like Wyoming and Colorado that had breakdown regulations like Utah's have revised theirs and now comply with EPA standards.
Salt Lake City-based environmental attorney Joro Walker called the EPA's action "a significant issue." She expects to voice her support for the EPA's crackdown during a formal public input period that continues through Dec. 20.
"I'm glad the EPA is taking this step," she said. "But it is unfortunate it took so long. They had to be sued to be forced to take this action."
Tom Bingham, president of the Utah Manufacturers Association, said his group would also submit comments on the EPA's plans and take part in the state's effort to comply with the EPA's requirements. The state's breakdown rule, which his group helped craft years ago, gives Utah the enforcement tools Bingham says it needs to deal with bad actors.
"I guess the [EPA's] assumption is that [all breakdowns] are avoidable," he said, "and that's just not the case."
Sometimes equipment fails even if it is properly operated and maintained, Bingham said. In those cases, a company should not automatically be found in violation and subject to big fines that could put them out of business.
Weigh in on clean air
The EPA is taking comments soon on its plans to force Utah to update its "unavoidable breakdown" rule. It has published its rationale in the Federal Register and will accept comments through Dec. 20. Details about how to submit comments are in the Federal Register notice. You can see the notice here › http://tinyurl.com/33xbrad.