At the end of the last administration, EPA finalized two adverse rulemakings for the state of Utah, one for the Northern Wasatch Front and one for the Uinta Basin (UB). If left in place, these rules would have costly and unnecessary impacts on our industry.
In December, EPA completed a rulemaking that reclassified the Northern Wasatch Front (NWF) ozone nonattainment area, which includes all of Salt Lake City, its suburbs and the five petroleum refineries. This action will require significant new controls on emissions.
EPA’s decision was flawed for a variety of reasons.
The NWF has a long history of decreasing emissions of NOx and VOC, the two primary ozone precursor emissions to ozone formation in ambient air, but ozone has actually increased during this time.
Emissions from Utah’s petroleum refineries are heavily regulated. The refineries have major source air permits with Best Available Control Technology, are subject to Title V permitting and comply with various EPA rules (e.g., rules for petroleum refineries, boilers, benzene waste, storage vessels, leak detection and repair, etc.). They also comply with Utah State Implementation Plans (SIPs) for prior air quality standards (now all attaining) and with Utah’s Moderate Ozone SIP for the NWF. In addition, the local petroleum refineries make and sell Tier 3 gasoline voluntarily for the area instead of applying credits generated elsewhere as allowed in EPA’s gasoline standards, thus reducing motor vehicle emissions.
Modeling studies show that only about 25% of NWF ozone is caused by local emissions. Of that portion, almost half originates from motor vehicle and offroad mobile sources (examples include equipment for lawn and garden, construction, rail and airports). Large parts of NWF ozone come from international global sources, Utah biogenic sources and sources in the U.S. outside of Utah. The petroleum refineries supply only about 5% of local ozone-forming emissions.
The influence of international emissions, which arise from Mexico and Asia, causes about 6 to 7% of the ozone in the NWF, per multiple local studies. Moreover, the phenomenon of Asian emissions traveling to the intermountain west has been well-documented in peer-reviewed scientific studies. Fortunately, the Clean Air Act has Section 179B that allows states to show that the area would have attained the standard but for the influence of international emissions.
Utah developed a 179B demonstration, submitted just days after EPA issued the final reclassification rule, and EPA did not consider it in the rulemaking even though they had a final draft version in hand and had provided feedback to Utah on an earlier version.
Governor Cox also requested that the nonattainment area be expanded to include more of Tooele County and a large emissions source within the expanded boundary. When EPA issued the rulemaking to reclassify the area to Serious, the statutory deadline to act on the boundary adjustment had passed by a few months earlier, but EPA ignored this request too.
EPA also did not provide the required public comment period, using faulty reasoning for why it was not necessary.
Utah and UPA filed petitions for reconsideration with EPA, which EPA recently granted. This is a major positive step for the NWF. Utah and UPA also engaged the court and filed motions with the court to stay the rulemaking and hold the court case in abeyance while EPA completes the reconsideration. The court granted abeyance except for ruling on the stay. Recently, the court granted the stay of the rulemaking, holding the NWF at moderate nonattainment while EPA completes the reconsideration.
EPA also recently withdrew its problematic guidance for states to demonstrate the effect of international emissions. The guidance included criteria that went far beyond the simple plain language of the federal Clean Air Act.
Also in December, EPA completed a rulemaking that denied the request by Utah and the Ute Tribe to grant a second extension for the Uinta Basin to attain the EPA air quality standard for ozone. The Basin would have attained the standard if EPA had approved the second extension. With the denial, EPA moved the UB up from Marginal to Moderate nonattainment. This triggered EPA’s statutory obligation to move the UB to an even higher level, Serious. All of this results in significant additional controls and restrictions, despite the very real progress already being made to reduce emissions and enhance air quality.
Again, EPA’s decision was flawed for a variety of reasons.
For one, the UB has rare wintertime ozone that occurs only with heavy snow cover on the ground and temperature inversions that trap emissions in the Basin. The UB experienced exceptionally high snowfall in 2023, one of the two highest snow years of the last 50 years.
Additionally, air quality in the UB has steadily improved over the past decade, with current ozone levels at or near EPA’s standard and 25% lower than in 2013, despite a doubling of oil production. The oil and gas industry, the primary source of emissions that form ozone in the UB, complies with more stringent federal and state regulations now compared to 2013, including EPA’s 2022 rulemaking requiring more emission controls for sources on Tribal lands. These controls are in place now but, for the most part, were not yet in place for the high snow/high ozone winter of 2023. The industry also implements voluntary emission controls, including flyovers with airplanes outfitted with emission detection technology that provides images of the otherwise invisible emissions. UPA continues to work with UDAQ towards implementing EPA’s expansive regulations to control methane emissions from existing oil and gas sources, the so-called “OOOOc” regulation. Controlling methane also controls VOCs.
About 75% of the oil and gas sources in the UB are on Tribal lands where EPA currently administers the air quality standards. The remaining 25% are on lands under the State of Utah’s jurisdiction
The State of Utah, the Ute Tribe, a joint coalition of the Seven County Infrastructure Coalition with Duchesne and Uintah Counties, and UPA all engaged the courts and/or EPA seeking their reconsideration, with UPA, the State and the Tribe also requesting a stay of the December rulemaking. We are excited to share that EPA has granted that reconsideration, which means that EPA will re-do the rulemaking, a process that will take a year or more. Due to the regulatory mechanism the Biden administration used to issue the rule, EPA could not grant the stay of the rule, which is why UPA and Utah pursued a judicial stay to the rule. If granted, the stay would pause the rule so that the UB would return to Marginal while EPA completes the reconsideration.
A group of three environmental non-governmental organizations (NGOs) jointly filed motions to intervene in the case and to file a brief opposing the judicial stay. The court has not yet decided on whether they can file in opposition to the stay. However, the court granted the NGOs’ request to intervene if the case eventually goes to full briefing and oral argument, something that we do not anticipate given that EPA will reconsider the rule. Nonetheless, the court granted our request to put the court case in abeyance other than ruling on the NGO requests and our stay motion. Thus, the case will remain in abeyance until EPA completes the reconsideration.
We are extremely grateful to the member companies who have funded these efforts and to our diligent legal team for working so effectively on these issues. This isn’t the finish line, but it’s progress in the right direction for both cases. What this demonstrates is that when we work together, we achieve great things. It’s through the Utah Petroleum Association and trade associations like ours that members can leverage technical expertise, policy savvy and network connections to the benefit of our collective strength. We’re proud to represent you, and EPA’s grants of our requests to reconsider is a feather in our collective cap.
