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For years Utah environmental regulators have not processed federally required permits for nine industrial pollution sources because of disagreements with the U.S. Environmental Protection Agency over managing particulate pollution.
Now that failure has triggered a lawsuit.
Utah environmentalists on Thursday filed court papers asking a judge to order the Utah Division of Air Quality to take action on a permit application filed by Tesoro Refining and Marketing Co., owner of Salt Lake's largest oil refinery, as required under Title V of the Clean Air Act and state law.
Congress added Title V to the Clean Air Act in 1990 with an eye toward consolidating the terms and conditions of polluters' various permits under a single document in plain language, rather than the impenetrable technical jargon and bureaucratic-speak found in most permits.
"Issuing a Title V permit would make a big difference in terms of enforcement, monitoring, recording keeping, reporting and emission limits," said Joro Walker, an attorney with Western Resource Advocates.
"They are required specifically so the public better understands permit terms and conditions and have a means to enforce them," she added. "They are supposed to be transparent and easy to understand."
Title V permits also add another layer of EPA oversight, she said. EPA can reject the permit.
Long associated with appeals over Utah refineries' expansions, Walker filed the latest suit on behalf of Utah Physicians for a Healthy Environment and Friends of Great Salt Lake.
The Wasatch Front airshed is out of attainment of national standards for both fine and course particulate pollution, the tiny particles that blanket Utah valleys during winter inversions.
According to state regulators, the inaction on refiners' Title V applications stems from disagreements over Utah's state implementation plan, or SIP, for achieving compliance with the standard for course particulates, called PM10.
EPA has agreed that conflicting requirements between the feds and the state make Title V permits difficult to craft and enforce for Utah.
But Utah Division of Air Quality Director Bryce Bird says the refineries still are being held to tough emissions-control requirements, just not under the oversight of Title V.
"The lack of an operating permit does not leave a regulatory vacuum," Bird said. "Permits, consent decrees, federal performance standards and SIPs all contain provisions regulating the operations at Tesoro.
"Compliance with these provisions is verified through thorough inspections and the review of monitoring, reporting and record keeping that are as protective as the requirements of the Operating Permit," he added.
Frank O'Donnell, president of the national Clean Air Watch, said he knows of no other state that declines to process Title V permits, which play a vital role in public accountability.
"The EPA boasted Title V was a crucial program," O'Donnell said. "It required all states develop programs with minimal requirements, allowing citizens to be more involved with permit reviews and to improve compliance with emission control requirements. The whole point was to make it easier for citizens to feel the government was doing its job properly."
The Utah DAQ administers 71 such permits, but none for Salt Lake's five refineries and four other major pollution sources.
Back in 1995, Amoco Oil Co., which then owned the refinery at 474 W. 900 North, submitted an application for a Title V permit, then resubmitted it in 1998.
In 2001, Tesoro bought the plant, which began operating in 1908 back when the area was beyond the northern edge of the city.
The division's failure to abide by its "non-discretionary duty" to process Tesoro's application has denied the public an opportunity to participate in the permitting program and to influence the refinery's impact on air quality, according to Utah Physicians' suit.
"You can't just wait and wait and wait for the PM10 SIP to be final and in the meantime we are missing out in the protections Title V demands," Walker said. "We have complained up and down about this."