A last-minute compromise forged between the U.S. Environmental Protection
Agency, Colorado's manufacturing industry, the state of Colorado and citizen
groups ended a yearlong battle over how to handle extra pollutants spit into
the air when equipment malfunctions at industrial plants.
A Colorado Air Quality Control Commission ruling in Boulder on Friday means
factories such as the Cemex Inc. cement plant near Lyons must apply more of
their total pollutant emissions to their legal limits.
"This is the kind of 11-hour talk when everyone puts their heads
together to find a compromise that works for us," said Jeremy Nichols,
director of the conservation group Rocky Mountain Clean Air Action.
About 20 Cemex watchdogs and the Boulder County health department supported
the changes at the hearing.
In December 2005, Nichols filed a petition asking the EPA to force the state
to modify a law he believed did not comply with the federal Clean Air Act.
Nichols was concerned about a loophole in the rules that allowed large
industries to escape accountability when they puff pollutants into the air
during equipment malfunctions, or "upsets."
The loophole was being abused, he says, because many upsets claimed by
industries could have been prevented with regular maintenance, equipment
upgrades and better oversight of the production cycle. Locally, Cemex has
reported 116 upsets at its Lyons plant from January 1999 to May 2006, which
belched an unknown mixture of particulates and chemical pollutants into the air
around the St. Vrain Valley.
The EPA agreed with Nichols and sent a letter to the state last April. It
said, in essence, change the state rule or the EPA will force Colorado's hand.
On Friday, the state Air Quality Control Commission was set to hear arguments
and then vote on one of two proposed revisions. Option one was proposed by the
EPA and endorsed by citizen and environmental groups. The second option was
drafted by industry lawyers.
But before the hearing could begin, the parties came together in the halls
outside a courtroom inside the Wolf Law building on the University of Colorado
campus to draft a compromise.
"For all intents and purposes, this is option one," Nichols said
after the commission unanimously passed the compromise. "It's a laundry
list of things they need to meet to get out of paying civil penalties."
Industries must meet 10 strengthened requirements to prove they did
everything possible to prevent upsets and fixed malfunctions as quickly as
possible to avoid penalties. In the past, it was the responsibility of state
inspectors to prove that malfunctions could have been prevented. The new rule
switches the burden of proof to industry.
Even if penalties are not paid, companies will be accountable for emissions
during upsets because malfunction-related emissions will now be counted toward
the amount of pollution they are legally allowed. The original rules let
industries ignore pollutants emitted during upsets in their reports to the
state.
Dennis Arfmann, a lawyer representing the Colorado Association of Commerce
and Industry and the Colorado Petroleum Association, said the agreement was a
good compromise.
"We've worked hard to develop some middle ground," Arfmann said.