- 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.
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
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.
would target areas that do not yet meet federal air-quality
standards - Cuyahoga, Lucas and Hamilton counties.
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.
have since imposed an information blackout.
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."
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,"
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."
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,"
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.
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."
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.
General Betty Montgomery moved to block any sanctions,
suing the EPA in the 6th U.S. Circuit Court of Appeals
The lawsuit accuses
the EPA of exceeding its authority, but it has been put
on hold so lawyers representing environmental groups can
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
"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.
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