Fight in Utah over unplanned pollution is likely to continue

EPA is required to close loophole in emission reporting law.
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A marathon fight over industrial air pollution incident reports seems likely to drag on despite the state's latest efforts to end the dispute.

The public comment period closes 5 p.m. Monday on the "unavoidable breakdown rule," a regulation that requires about 1,200 big industrial plants to submit a written report whenever there's an unplanned air pollution release that lasts more than two hours.

The rule's underlying idea is for state regulators to keep close tabs on emissions over and above what's normally allowed. The reports help identify companies that aren't maintaining and operating their plants properly. They also help the state with pollution-reduction plans.

Because of a lawsuit by the environmental group WildEarth Guardians, the EPA is under court order to close what the critics have called a loophole in Utah's law. And the deadline for doing it is this summer.

EPA officials familiar with the situation were not available for comment Friday.

But the latest solution suggested by the Utah Division of Air Quality doesn't suit the Utah Manufacturers Association and regulated companies like Kennecott Utah Copper, and these stakeholders are urging air quality regulators to scrap the proposed changes, at least for the time being.

Jim Holtkamp, an industry attorney who serves on the UMA's air quality committee, noted that the EPA has even suggested dropping the regulation altogether and allowing the state to continue doing what it's been doing while regulators work with industry to find a better solution.

"We have a really good relationship with the state on these rules," he said. "We'll just have to continue working with the state toward a resolution."

He said the state's current policy on unavoidable breakdowns is not a loophole. Rather it recognizes that even companies that maintain their plants properly will occasionally have unintended pollution releases and should not be punished for those.

The state has proposed adopting an unavoidable breakdown regulation similar to one used in Wyoming, which requires more frequent reporting — one approved by the EPA.

Because of the court order, the EPA told Utah in late 2010 that it had to fix its breakdown rule or face building restrictions in high-pollution areas and possibly a moratorium on federal highway funds statewide, a source that pumps roughly $215 million to $240 million a year into state road and highway building.

Dropping the rule altogether might be one solution to ending the stalemate, but it could also create some bureaucratic headaches for state regulators trying to comply with their duties under the Clean Air Act to have a control plan for the pollutant PM 10.

Only a few comments had been received by the air quality office as of Friday leading up to Monday's deadline.

"We will review all the comments," said Bryce Bird, director of the air quality division.

Meanwhile, Kathy Van Dame, a representative of the Wasatch Clean Air Coalition who sits on the state air quality board, said she thinks it's time for the 30-year-old regulation to be updated.

"When sources break down and have large emissions — especially emissions of hazardous air pollutants — those should be reported to the public and the law should be enforced."

Twitter: @judyfutah