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A new proposal from Utah Sen. Orrin Hatch could give the state more time to address its growing problem with ozone pollution.
The Senate bill co-sponsored by Sen. Claire McCaskill, D-Mo. would allow states and communities expected to violate the Environmental Protection Agency's new standard for ozone pollution levels to instead enter into voluntary control programs.
Places agreeing to such plans would be able to put off being labeled as nonattainment areas and avoid being forced to adopt compliance plans for up to 10 years, according to the Utah Republican senator's office.
Hatch said he believed his measure could improve air quality while avoiding the "negative job-killing consequences that come with a nonattainment designation."
Hatch also said his proposal would help to rectify what he called the "one-size-fits-all" approach the EPA took when it decided to decrease the standard for ozone from 75 parts per billion to 70 parts per billion in 2015.
"This type of national standard is particularly insensitive to the unique challenges of many communities out West and in Utah, where naturally occuring ozone is significantly higher due to regional geography," he wrote in an emailed statement. "Therefore, we need to work on air-quality solutions that do not unfairly punish communities where ozone levels are elevated through no fault of their own."
Ozone a pollutant that can cause permanent lung damage, especially in young children forms in the atmosphere when other chemicals, many emitted by cars, react with sunlight. It is typically a summertime problem, though Hatch noted it has been known to form in winter, especially in Utah's Uinta Basin.
State officials have recommended the EPA designate nonattainment areas in Salt Lake, Davis, Weber, Utah, Duchesne and Uintah counties. If the EPA does and the formal designation is expected later this year those counties would have three years to meet federal air-quality standards before incurring more stringent air-pollution controls under the federal Clean Air Act.
Bryce Bird, director of the Utah Division of Air Quality, said he had not yet reviewed Hatch's bill and was unsure what impact it may have on Utah's proposed nonattainment areas.
But a former EPA attorney and an environmentalist who has fought similar efforts in the past called the proposal "harmful and irresponsible, because it would allow unsafe air to persist in U.S. communities for longer than today's stronger law allows.
"This approach," John Walke said, "badly undermines Americans' legal right to safe air."
The EPA had a similar program in the past which, according to Hatch and other bill sponsors, ended "unfortunately" in 2007 after a series of lawsuits. The program resulted in 13 of 14 areas that participated to improve their air quality and avoid a nonattainment designation, according to a news release from Hatch's office.
Walke who helped to bring one of those lawsuits on behalf of his current employer, the environmental group Natural Resources Defense Council remembers that history differently.
The old program, known as the Early Action Compact Program, effectively "did away with the statutory deadline for making nonattainment designations" and "did not require industries and states to take the steps that Congress imposed."
Walke said his client and other litigants agreed to call off their lawsuits to allow an experimental program to play out. And it did result in better air quality in most cases, he said. But later analysis found that mild weather conditions may have made the experiment appear to be more successful than it was, Walke said, and unresolved concerns remain.
Chief among those, Walke said, was the potential for states to miss compliance deadlines in the Clean Air Act, in the event that the voluntary program failed.
"Despite good faith and best efforts," he said, "citizens were going to be exposed to unsafe air for longer due to this experiment."
Furthermore, Walke said, the voluntary programs tended to be soft on large industrial polluters while imposing more regulations on "ordinary citizens."
"So that history has been a concerning one," he said, "especially when it is trading away legal obligations that have been proven to work in this country."