WildEarth Guardians

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 its call for Utah to eliminate a loophole in its air quality regulations within 18 months, or face sanctions, a significant step forward for clean air.

“With Utah’s health at stake, the last thing we need is a loophole allowing more pollution,” said Jeremy Nichols, Climate and Energy Program Director for WildEarth Guardians.  “The EPA’s call today is a positive step toward safeguarding kids, families, and everyone else who needs clean air.”

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

At issue is an exemption in Utah’s air quality regulations that allows polluters to avoid compliance 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 to eliminate the loophole.  Rocky Mountain Clean Air Action since merged with WildEarth Guardians.  In late 2009, WildEarth Guardians filed suit against the EPA to require Utah to eliminate the loophole, prompting EPA to issue today’s rule.

The State of Utah has known that the breakdown loophole has been illegal for a number of years.  In a December 2002 publication in the Federal Register, the State of Utah committed to eliminating the loophole.  More than eight years later, this loophole continues to exist.   The EPA commented in one 2006 memo, “Utah has been advised on a number of occasions that the unavoidable breakdown is not consistent with EPA’s interpretation of the Clean Air Act[.]”

“Breakdowns are preventable through regular maintenance, upgrades, and better planning,” said Nichols.  “It just make sense that we should be safe, not sorry, and ensure our clean air rules prevent breakdowns, not accommodate them.”

EPA’s rule comes amid opposition from industry and some states.  In its response to comments, the Agency dismissed opposition, noting that “Commenters...appear to assume the need to pollute trumps protection of the [national ambient air quality standards].”  The EPA also noted the loophole has been used to avoid compliance with air quality standards at some of Utah’s largest oil refineries.

The final rule comes as 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 of PM-2.5 pollution.  Exposure to unhealthy PM-2.5 shaves two years from the lives of people who live in it, about the same as smoking five cigarettes a day.

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