EPA warns Taft to clean up state's act

08/20/02

Cincinnati

- After months of wrangling with Gov. Bob Taft's administration, the EPA has formally warned Ohio that it soon stands to be stripped of federal highway money for failing to enforce national clean-air laws.

Suspending highway money in early 2004 would be a massive penalty: Ohio receives more than $900 million a year from Washington for roads.

But that might not be the toughest sanction ahead if the showdown continues.

The Environ mental Protection Agency also can clamp limits on economic growth by tightening allowable pollutant levels in clean air permits. That would halt construction on major non-government projects by next year. It has already taken some of the first regulatory steps to invoke that power, government records show.

Tightening those levels would stifle the state's efforts to lure businesses and create jobs because companies would face fewer environmental restrictions in other parts of the nation.

The sanctions would target areas that do not yet meet federal air-quality standards - Cuyahoga, Lucas and Hamilton counties.

Cuyahoga and Lucas, in northern Ohio, have dirty air from sulfur dioxide, a gas formed when coal or oil is burned by industries and power plants. In Greater Cincinnati, the problem is smog from motor vehicles.

Despite the threat of sanctions, Ohio's air has been improving since the late 1980s. Toxic emissions and sulfur dioxide are down nearly 60 percent.

The EPA warned Ohio of the looming sanctions in a "notice of deficiency" - a legal order quietly approved four months ago. With that notice, the clock started ticking. Penalties could begin in October 2003.

The state still could avoid the sanctions. But the Taft administration launched a court fight against the EPA last month with two business groups as allies - the Ohio Chamber of Commerce and the Ohio Chemistry Technology Council.

Federal officials have since imposed an information blackout.

Environmental regulators use sanctions to force states to comply with the Clean Air Act. The government threatened sanctions about 900 times in the last decade. It actually imposed them about 20 times.

The notice of deficiency says Ohio illegally exempted 22,000 small-emission units from air-pollution monitoring reports. Each of the sites, which run the gamut from small pumps, vents, fans, sprayers, ovens and storage tanks, may emit up to 5 tons of regulated pollutants annually.

The EPA now wants all of them placed under heightened scrutiny.

It also says the state has not made major polluters file prompt reports disclosing incidents - such as dates when plants smoked excessively - which deviate from air-quality permits. And it says company executives have not certified that their air-quality monitoring reports are "true, accurate and complete," a requirement that Ohio regulators have balked at enforcing.

The dispute is a serious one, said Capital University law Professor Dennis Hirsch. "It's not just a matter of paper shuffling."

The EPA wants companies to disclose all aspects of their facilities that contribute to air pollution, adding more accountability and integrity to the air-quality system, Hirsch said.

Ohio wants flexibility and discretion in regulatory procedures, he said. "There is a promise of that in the Clean Air Act. Now that they are in court, it looks like federal and state relations under the Clean Air Act will be sorted by the judges."

Complying with the federal EPA order would force a 200 percent increase in the number of Ohio sites covered by federal air-pollution permits, along with a huge increase in paperwork, says Ohio EPA Director Chris Jones.

He calls the federal EPA overzealous because all 22,000 small emission sites were previously exempt from federal review.

"In other words, in 1995, the U.S. EPA told us we have a completely acceptable program. Now, despite there being no change in the Clean Air Act, we are told that the same program is deficient," Jones says.

Ohio was among just eight states that exempted small sites. After the EPA ordered changes, Ohio is one of the last holdouts.

The 22,000 sites are "little, insignificant sources that are really meaningless in the grand scheme of cleaner air," said Andrew Bergman, a lawyer for the Ohio Chamber and the Chemistry Technology Council. "And all the big sources are already regulated. This is just placing another burden on businesses."

Bergman said most states are afraid to fight the EPA in court.

"The EPA has so much leverage over the states and to see a state cave in does not mean the EPA is right. It only means the U.S. Environmental Protection Agency is a 500-pound gorilla," Bergman said.

Collecting the data about small sources won't lead to any lessening of air pollution, said John Paul, director of Dayton's Regional Air Pollution Control Authority, which enforces clean-air rules in seven western Ohio counties.

"That's the absurdity of the U.S. EPA saying Ohio has a significant deficiency in its program," Paul said. "Somebody should tell them to stop the insanity."

But Kurt Waltzer, clean-air program manager for the Ohio Environmental Council, a network of more than 100 green organizations, said federal regulators are pushing the state to get a clearer picture of what's being released into the skies.

"They want the state to collect more information, they want Ohio EPA to do a better job. Up to now, it's been 'See no evil, hear no evil,' " Waltzer said.

Officials in other states that faced similar EPA orders predict that Ohio will settle with the feds.

"We now check everything under the sun for emissions, and some of the stuff is so small that it's not worth the effort," said Howard Rhodes, director of Florida's air-quality program.

"Yet the EPA felt it was important, that it was required by the law. We had a lot of opposition from industry; they thought it was the silliest thing they ever heard of. We thought about going to court, but in the final analysis we decided it's not worth spending the money to fight them since they'd probably win."

In Kentucky, Art Williams said his clean-air agency also gave up without a fight last year.

"We decided the EPA's position was the better one. It was certainly more protective of health and the environment," Williams said.

Since the deficiency notice was filed, Ohio and EPA officials have begun negotiations toward settling the dispute.

An EPA official in Chicago confirmed that talks were taking place but declined further comment.

Meanwhile, Attorney General Betty Montgomery moved to block any sanctions, suing the EPA in the 6th U.S. Circuit Court of Appeals in Cincinnati.

The lawsuit accuses the EPA of exceeding its authority, but it has been put on hold so lawyers representing environmental groups can intervene.

Seattle environmental lawyer Matt Cohen said Ohio got caught in the crossfire accompanying a lawsuit filed in 1996 by a coalition of Pacific Coast petroleum-drillers, aluminum smelters, and the pulp and papermill industry.

His clients complained that the EPA approved Washington state clean-air rules governing small emissions that were far more stringent than Ohio's.

"The EPA regional office out here was real aggressive; you know, this is a green part of the world. Ohio is an industrial state, and the EPA was a little more lenient there," Cohen said.

A federal court agreed the national Clean Air Act rules were inconsistent between the two states. But rather than ease Washington's clean-air standards, the EPA declared industrial Ohio's too lax, Cohen said.

Now, he doubts that Ohio can win its argument.

"I'm not holding my breath," he said.