US Magnesium loses pollution rule appeal
Denver court upholds Utah's "unavoidable breakdown rule."
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A court ruling Monday might finally end a years-long battle over air pollution mishaps at Utah industrial plants.

The 10th Circuit Court of Appeals in Denver sided with the U.S. Environmental Protection Agency, which had threatened to take over part of Utah's air-quality program unless the state updated its so-called "unavoidable breakdown rule."

US Magnesium had asked the court to nix the new regulation for reporting unexpected pollution episodes at around 1,200 plants. The company said EPA hadn't followed proper procedure, but the court disagreed.

"We deny the petition for review," the three-member panel said.

A mining and processing operation on the southwestern edge of the Great Salt Lake, US Magnesium did not respond to requests for comment. Nor did its attorneys.

But an environmental group that called Utah's breakdown rule a "loophole" and forced the issue into court, welcomed Monday's decision. Jeremy Nichols, climate and energy program director at WildEarth Guardians, said the issue goes really boils down to public health and not regulatory technicalities, as the magnesium company argued.

"The [Utah] rule was flawed, and EPA was right to tell Utah to get rid of it or fix it," he said.

"It's best to keep the poisons out of the air in the first place," he said. And that EPA principle "is consistent with what we deserve and what we expect in our society."

Utah has pushed forward with a new breakdown rule for more than a year, even while the court was considering the case this spring.

Under the old standard, originally approved in 1980, Utah regulation basically assumed a company was innocent until proven guilty of an unauthorized pollution release when an accident or breakdown occurred. EPA policy changed in 1999, and it could not reach an agreement with the state on an improved rule.

In 2010, after WildEarth Guardians pressed the issue in court, the EPA said it would take over part of the state's air-pollution program unless the breakdown provision was brought in line with the Clean Air Act. In effect, the new regulation assumes industrial plants are guilty of polluting excessively until they can prove the breakdown was unavoidable and was not the result of shoddy maintenance and operations.

Utahns generally voiced support for the new approach during a comment period the Division of Air Quality held earlier this year. But comments from three organizations representing industry panned the state's proposed solution, an approach that the EPA approved.

The industry groups said the new regulation meant too much paperwork, and they wanted regulators to drop it. They said the state should stick with its old strategy, which they argued was effective in curtailing pollution from sloppy operations and punishing violators.

But the state moved forward with the proposal over industry's objections and despite the magnesium company lawsuit. The new regulation became final last month. The EPA is expected to sign off on it by the year's end.

fahys@sltrib.com

Twitter: @judyfutah