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The Associated Press April 19, 2011, 11:05AM ET

EPA threatens Utah with air quality sanctions

Federal officials threatened Monday to block road money and seize control of Utah's air quality management plan because of an exemption for excessive pollution from oil refineries and other sources.

Utah officials have about 18 months to change the rule to ensure polluters are cited for a violation first, instead of the state having to investigate a breakdown and then issue a violation, said Monica Morales, the head of the air quality planning unit for the Environmental Protection Agency's Region 8 office in Denver.

The current rule "is not in compliance with the Clean Air Act," Morales said.

Monday's EPA ruling is part of an ongoing effort to tighten loopholes in state air quality rules. In 1999, the EPA specifically targeted pollutants released when a facility starts operating, shuts down or malfunctions.

Since that time, the EPA has forced more than a dozen states to modify their rules, including Colorado, Wyoming and North Dakota, Morales said. Other states, such as Georgia, are not facing sanctions, despite having a nearly identical rule.

Utah's so-called "unavoidable breakdown" rule allows companies to claim an excessive release of pollutants based on a malfunction. Under state law, that is not considered a violation, but federal law assumes the opposite.

Changing the rule won't have any tangible impact on air quality in Utah because it's only procedural, said Bryce Bird, who oversees the emissions reduction plan for the Utah Department of Environmental Quality.

This past winter, areas along the urban Wasatch Front in Utah reported the worst air quality in the country on multiple days.

Last year, only three excessive pollution releases were caused by "unavoidable breakdowns" and lasted more than two hours, Bird said. Only a dozen occurred in the last four years, he said. The state does not require reporting of malfunctions that last less than two hours.

"Breakdowns aren't in the best interest of the industry," Bird said. "That's enough incentive for them."

Industry is not abusing the rule, either. Bird said he remembers only one company being cited because an "unavoidable breakdown" was found to be preventable, and that was more than a decade ago.

If the state decides against changing the rule, it would likely mean a lawsuit against the EPA, which the state should consider, said Utah Manufacturing Association president Tom Bingham. After all, the current rule put in place about a decade ago, with industry input, works fine, he said.

"We looked to find something that would protect the environment but would also give some relief to industry," Bingham said. "If it's unavoidable, it's not fair to punish" the company.

By not citing polluters first and then investigating, the state is letting companies avoid punishment, said Jeremy Nichols, the Climate and Energy director for Colorado-based WildEarth Guardians. The group filed the lawsuit prompting the EPA ruling.

"Utah is unwilling to take the necessary steps to protect the health of their residents," Nichols said.

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