Bill Allowing Utah to Adopt Regs. Stricter Than EPA Passes Senate Committee, Moves to Floor (Extended Coverage)

(EnviroNews Utah) — Salt Lake City, Utah — In what turned out to be a huge blow to environmentalists and Utah air pollution fighters alike, two highly anticipated bills, House Bill 121 and Senate Bill 164, put forth by Republican Representative Becky Edwards and Democratic Senator Gene Davis respectively, both went down in flames in Utah’s 2014 legislative session. Each bill had been geared to do something monumental in Utah’s nagging, ongoing, saga-like air pollution catastrophe, but in the end, no dice.

The Wasatch Front, where most of the state’s population resides, falls victim to dangerous “Red Air” spikes, in part due to unique geographical wintertime “inversions” that trap and compress particulate-laden air on the valley floor. As a result, the Beehive State has been hampered year-after-year with the most dangerous air in the U.S.

Part of the problem is that nearly three decades ago, legislators implemented 19-2-106, a section of law that codified language mandating the Utah Department of Environmental Quality (DEQ) and its Division of Air Quality (DAQ) shall not pass regulations stricter than those of the the U.S. Environmental Protection Agency (EPA) — a fateful piece of legislation that many feel has created a hands-tied handicap, preventing Utah from taking the bull by the horns in its own unique and extraordinarily hazardous air crisis.

Edwards’ bill sought to untie the DAQ’s hands from the old restrictive code which states: “…no rule which the board makes for the purpose of administering a program under the federal Clean Air Act may be more stringent than the corresponding federal regulations which address the same circumstances.”

H.B. 121 attempted to modify section 19-2-106 by lifting this restriction, as long as “the more stringent rule will provide essential added protections to public health or the environment.” However, under H.B. 121, any proposed changes would have had to have been subjected to a burden of scientific proof as well as public comment in front of the Board. In the end, Edward’s attempt to make this change failed.

Davis’ bill, a piece of legislation that went even further than Edwards’ bill made an effort to repeal and delete Section 19-2-106 entirely — a move that would have given the DAQ power to act as a real regulator without cracking its head on an imaginary EPA ceiling every time it pops up to look around at the murky air. Davis too, was ultimately unable to gather the necessary support to pass his bill, missing the mark by only one vote and leaving many concerned residents disappointed and wondering if Utah’s legislature takes the air issue seriously at all.

Undeterred, both Edwards and Davis are back with their bills again this year, although under new names — H.B. 226, and S.B. 87 respectively. While Edwards’ bill has minor changes, Davis’ bill is simple, straight forward and the same this year, as it was last year.

S.B. 87 hit committee ahead of Edwards’ H.B. 226 in the Senate Natural Resources, Agriculture and Environment Committee on February 4, at the Utah State Capitol.

Many clean air advocates support both bills and think that either would be a major step forward for Utah in cleaning up it’s act. Common sentiments suggest Davis has a stronger bill, while Edwards may have a more realistic chance of passing H.B. 226 in Utah’s pro-business environment, as she allowed substantial input from industry in its crafting where Davis did not.

Although there are many lobbyists at the capitol this time of year, spectators were surprised by the totally lopsided nature of representation and speakers that day. It was made clear that environmental organizations understand the potentially pivotal nature of what was being voted on by committee members, as founders and executive directors from several prominent groups turned out to address their senators. Tim Wagner, Executive Director of the Utah Physicians for a Healthy Environment (UPHE), Ingrid Griffee, Executive Director of Utah Mom’s for Clean Air, and Alicia Connell, co-Founder of Communities for Clean Air were all among those who spoke at the meeting.

Todd Bingham, President of the Utah Manufacturers Association (UMA) stepped up to the plate to offer the lone voice in opposition of S.B 87 from industry’s side, and people were perplexed when he revealed he was also representing the Utah Mining Association and the Utah Petroleum Association as well.

On a bill with this kind of potential impact, we, at EnviroNews were expecting to see individuals the likes of slick high-powered oil and gas attorney’s, with even slicker spinning lobby language, putting industry’s best foot forward in an effort to convince the committee to hold the legislation from the floor. However, this definitely was not the case.

In even more of a surprise, Bingham got up to bat with hardly any fact-based ammo at all, lacking the typical smooth “it’ll kill jobs and hamper the economy” lingo, and offering little pushback to convince the committee of why Davis’ bill could potentially be a “bad idea,” or anything of the sort.

Connell, commenced her piece in saying, “[I’m a] mom — a realtor — a republican precinct chair in my area, and a delegate” — words that drew attention from those in attendance including the local media, as that highly conservative lineup of credentials is not traditionally one that lands a person on the side of sticking up for the environment.

Connell included as part of her strategy a real-life situation, laying out how Senate Bill 87 could have a big impact in making Utah’s air cleaner and safer when she referenced her group’s fight with North Salt Lake City’s beleaguered Stericycle medical waste incinerator.

After, Bingham’s testimony, and while Connell was still speaking, members in the crowd reportedly saw Senator Evan Vickers receiving what appeared to be a text message on his phone, followed by an exchange of signals with Bingham. Vickers then walked out right in the middle of Connell’s testimony and stepped out into the hall.

Cherise Udell, Founder of the Utah Mom’s for Clean Air was also in attendance, and upon observing this, stepped out into the hallway as well where she snapped a picture of Senator Vickers having a little chat with Bingham. Some observant community members felt Vickers’ actions were disrespectful and downright shady.

Udell, who has dealt with industry lobbyists plenty on Utah’s Capitol Hill, wrote this in a Facebook post following the episode:

During the hearing for SB 87, I noticed Vickers look at his phone like he just received a text. Then I saw him signal to the Utah Manufacturing Association (UMA) guy who had just spoken against SB 87 and they walked out together in the middle of the discussion. So I followed them and took this photo. Following his return to room, a vote was taken and he voted no. As I suspected, Vickers gets $$$ from UMA. Carrie looked it up. No surprise there, but still dismaying to see all that dirty money in action.

Seedy hallway lobbyist chat sessions aside, grabbing everyone’s interest at the meeting was the lone Democrat on the committee, Senator Jani Iwamoto, as she made a motion to push the bill through committee and to the floor. Iwamoto, who also happens to be an environmental lawyer, gave a personal account detailing derogatory things she has heard friends and family say about Utah due to its air, and also spoke in heartfelt fashion about how her two children now both have asthma. She said she felt Davis’ bill was “cleaner” than that of Rep. Edwards’ — still tied up in rules over on the House side.

After Iwamoto motioned to move the bill to the floor, Senator Peter Knudson made a substitute motion to hold Davis’ bill in committee, saying he like Edwards’ proposed legislation better — a move that clearly had Davis eager to rebut saying, “Senator Edwards’ bill, we don’t even know where that is. I think that’s still in rules in the House… It may not even get out, to get over here to be heard — which means, the priority of this bill is then lost in trying to wait.”

In the end, Knudson’s substitute motion failed in a 3-3 tie, and the committee proceeded to vote on Iwamoto’s original motion proposing S.B. 87 be sent through to the full Senate for discussion, and ultimately a vote.

Senator Vickers, after having returned from his little hallway chat with industry’s point-man for the meeting, decided he needed to explain his vote for the record. To the befuddlement of crowd-members, after hearing four straight “YEA” votes, including one from highly conservative Allen M. Christensen, he voted “NAY” and explained his reason for doing so was none other than so the motion didn’t pass unanimously saying, “This may sound a little crazy, but I hate to see a bill like this go to the floor without a descending vote, not knowing how the Chair is going to vote. (laughs) So, I’m going to vote ‘NO’ if for no other reason, than to make sure that the body of the Senate doesn’t think that this went unanimous.”

Following Vickers’ ‘NO’ vote and interesting explanation, acting Chairwoman Dayton also felt the need to explain her vote. Referencing “pioneers” and “indians” she blamed the brunt of Utah’s issue on a “geography problem” and said, “Frankly, I would rather work with DEQ than EPA, and our state has chosen to have their own DEQ instead of working directly with the EPA, which in and of itself, in part, is a Utah solution. If our DEQ is out of order, and we cannot maintain it here in the state, then we have to deal directly with the EPA.”

We spoke to several educated onlookers that were on the scene, and none could seem to understand Dayton’s reasoning in voting “NAY”, and expressed that her argument seemed contradictory, backwards and glaringly flawed for several reasons like these: (1) the EPA has ultimate jurisdiction and Utah is currently a non-attainment area. (2) Utah is already under a hard EPA mandate to clean up its act and come into compliance with federal air quality regulations by 2019. (3) Following current EPA standards is not working to bring Utah into compliance hence, allowing Utah’s DEQ to regulate more strictly than EPA standards could theoretically demonstrate to the Feds that the state is actually doing everything in its scope to reach attainment in an effort to keep the EPA from having to come in with an iron fist to enforce clean air regulations.

In what was ultimately a satisfying outcome to environmental leaders, the committee voted 4-2 to send the legislation to the Utah Senate floor for discussion. Many air quality activists deeply support S.B. 87 and want to see it pass, but also seem happy that there is another bill in the chutes should Davis’ bill fail.