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Monday, April 18, 2011
EPA to Sanction Utah for Illegal Clean Air Loophole

Final Rule Puts Public Health First, Gives State 18 Months to Eliminate Exemption that Benefits Polluters
Contact: Jeremy Nichols (303) 573-4898 x 1303

Denver—The U.S. Environmental Protection Agency (EPA) today finalized itscall for Utah to eliminate a loophole in its air quality regulations within 18months, or face sanctions, a significant step forward for clean air.

“With Utah’s healthat stake, the last thing we need is a loophole allowing more pollution,” saidJeremy Nichols, Climate and Energy Program Director for WildEarthGuardians. “The EPA’s call today isa positive step toward safeguarding kids, families, and everyone else who needsclean air.”

In a final rulepublished today, the EPA announced it is finding that Utah’s air qualityregulations fail to comply with the federal Clean Air Act. In turn, the Agency is also proposingto sanction the State of Utah if the regulations aren’t fixed within 18months. Sanctions would includepollution offsets and restrictions on highway funding.

At issue is anexemption in Utah’s air quality regulations that allows polluters to avoidcompliance with any and all state and federal clean air laws and regulations,regardless of threats to public health and welfare, in the event of“breakdowns.” As early as 1979,the EPA stated that the Utah exemption was illegal.

In December of 2007,the group Rocky Mountain Clean Air Action petitioned the EPA to force Utah toeliminate the loophole. RockyMountain Clean Air Action since merged with WildEarth Guardians. In late 2009, WildEarth Guardians filedsuit against the EPA to require Utah to eliminate the loophole, prompting EPAto issue today’s rule.

The State of Utahhas known that the breakdown loophole has been illegal for a number ofyears. In a December 2002publication in the Federal Register, the State of Utah committed to eliminatingthe loophole. More than eightyears later, this loophole continues to exist. The EPA commented in one2006 memo, “Utah has been advised on a number of occasions that the unavoidablebreakdown is not consistent with EPA’s interpretation of the Clean Air Act[.]”

“Breakdowns arepreventable through regular maintenance, upgrades, and better planning,” saidNichols. “It just make sense thatwe should be safe, not sorry, and ensure our clean air rules preventbreakdowns, not accommodate them.”

EPA’s rule comes amid opposition from industry and somestates. In its response tocomments, the Agency dismissed opposition, noting that “Commenters…appear toassume the need to pollute trumps protection of the [national ambient air qualitystandards].” The EPA also notedthe loophole has been used to avoid compliance with air quality standards atsome of Utah’s largest oil refineries.

The final rule comesas Utah is in the midst of planning a massive clean up of its fine particle pollution,or PM-2.5. Every year, about 2,000 Utah die prematurely because ofPM-2.5 pollution. Exposure to unhealthy PM-2.5 shaves two years from thelives of people who live in it, about the same as smoking five cigarettes aday.

The EPA has designatedthe Cache Valley and the Wasatch Front from Ogden south to Provo as“nonattainment,” or “dirty air” areas because of violations of PM-2.5standards. This designation puts the areas on the road to clean up andeliminating the “breakdown” loophole will be an important first step towardsecuring clean air safeguards for northern Utah.