Court Rules EPA's Imperial Valley Air Waiver Illegal

SAN FRANCISCO, California, October 10, 2003 (ENS) - The U.S. Environmental Protection Agency (EPA) should not have granted California's Imperial Valley a waiver from compliance with the Clean Air Act, a federal appeals court ruled Thursday. The EPA granted the waiver in October 2001 because it concluded the Imperial Valley would have met the law's 24 hour air quality standards if not for air pollution from Mexico.

Environmentalists challenged that justification and said the waiver deprived Imperial County residents of badly needed protection from harmful airborne particulate pollution, a key ingredient in smog .

The waiver, given by the EPA in October 2001, exempted the Imperial Valley from compliance with the Clean Air Act's 24 hour air quality standard for particular matter with an aerodynamic diameter of 10 microns or less - known as PM-10.

The 1990 amendments to the Clean Air Act allow the EPA to grant waivers to areas that would comply with these standards "but for emissions emanating from outside the United States."

There are some 580,000 acres of farmland in California's Imperial Valley. (Photo courtesy the Imperial County Farm Bureau)

The three judge panel rejected that conclusion. In the decision, the panel wrote that "based on the data and the reports in the record there is simply no possibility that Mexican transport could have caused the observed PM-10 exceedences."

The court noted that violations of clean air standards often occurred miles north of the border, even on days when winds were not blowing from Mexico.

The decision was issued by the U.S. Court of Appeals for the Ninth Circuit in San Francisco. The EPA did not comment on the ruling.

The court further ordered the EPA to reclassify the Imperial Valley as "severe" for particulate pollution. This will force the agency and county pollution control officers to enact stricter anti pollution requirements for industry, agriculture, and other pollution sources.

"This decision is a great victory for public health," said David Baron, an attorney with Earthjustice, which litigated the petition by the Sierra Club. "EPA has allowed Imperial Valley residents to breathe polluted air for a decade longer than necessary."

Baron points out that Imperial County does not have an EPA approved plan to address particulate pollution, even though one was due ten years ago.

"Pointing fingers at Mexico does not reduce the substantial amounts of particulate pollution generated within Imperial County," added Edie Harmon, a Sierra Club activist in Imperial County. "Much more needs to be done to control pollution on the U.S. side of the border."

Other agricultural areas, such as Oregon's Columbia Plateau, are wrestling with particulate matter air pollution. (Photo courtesy the Washington State University)

Particulate matter consists of soot, soil, dust, metals, and other particles emitted by industrial facilities, agriculture operations, mines, motor vehicles, and other sources.

Scientific studies link airborne particulates to tens of thousands of premature deaths across the nation, as well as a range of respiratory illnesses.

Particulate matter levels in the Imperial Valley have been found some two times as high as federal standards and the region has one of the highest childhood asthma rates in the state. Its death rate from respiratory diseases is more than double that of California as a whole, according to the state's Department of Health Services.

But how the region will comply with the stricter standards remains to be seen, and local officials are worried about the economic impacts for the state's poorest county.

The EPA estimates that some 70 percent of the PM-10 in the hot, dry valley is dust, with 10 percent to 15 percent from motor vehicle emissions and 4 to 8 percent from agricultural burning.