Metropolitan News-Enterprise


Wednesday, June 24, 2015


Page 1


Panel: EPA Properly Rectified Error in Adoption of Clean Air Rules




The Environmental Protection Agency acted properly in correcting rules designed to improve air quality in the San Joaquin Valley once it learned that they covered sources not subject to state law, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel ruled against the citizens group Association of Irritated Residents, who claimed EPA could not go back and change the State Implementation Plan, adopted under the Clean Air Act. The agency asserted that correcting the plan was appropriate once it learned that state law does not allow the San Joaquin Valley Unified Air Pollution Control District to regulate pollution from minor agricultural sources.

AIR has been involved in numerous disputes regarding the smog-ridden valley, including the issue ruled on yesterday, which concerns the act’s “new source review,” or NSR, program. The program requires major sources in areas like the valley to take specified steps to reduce emissions, whereas minor sources are also subject to EPA regulations, but are not required to have NSR permits for all construction activities, as major sources are.

Volatile Organic Compounds

The district has long concerned itself with volatile organic compounds, which react with nitrogen oxides in the presence of summer heat and sunlight to form smog. The district has identified confined animal facilities as among the largest sources of such compounds, but its legal authority to regulate such facilities has been limited.

Prior to 2003, state law exempted all agricultural operations from NSR permit requirements. But faced with possible loss of federal highway funding, the Legislature passed Senate Bill 700 to remove the blanket exemption.

That law still contained exemptions for minor agricultural sources, but the district submitted air-quality rules for 2004 that said all stationary sources of air pollution, whether major or minor, required NSR permits. The EPA, not being informed that the rules conflicted with SB 700, approved the 2004 rules without exemptions for minor agricultural sources.

AIR in turn accused certain dairy farms that were minor agricultural sources of violating the NSR rules by not obtaining permits, purchasing offsets, or installing “best available control technology.”

Mistake Realized

When a federal judge considering AIR’s three federal complaints agreed that the farms had violated the 2004 NSR rules, the EPA realized that its approval of the rules was erroneous because the district lacked authority under SB 700 to enforce the permit obligations against minor agricultural sources.

AIR petitioned the Ninth Circuit after the EPA revised the scope of its 2004 approval, limiting its approval to cover only the air pollution controls allowed by state law.

Noting that the EPA’s approval followed a request for the California attorney general to interpret SB 700, the panel said it was reasonable to correct the State Implementation Plan to remove restrictions that were not authorized by state law and thus should not have been included in the plan to begin with.

“Since the statute is ambiguous and technical, it was rational for the EPA to request and accept the attorney general’s interpretation, especially since commenters, including AIR, had requested that the EPA obtain the Attorney General’s input,” Senior U.S. District Judge Marvin Garbis of Maryland, sitting by designation, wrote for the court.

Standard of Review

In reviewing EPA actions, Garbis noted, the court follows the Administrative Procedure Act, §706 of which provides that agency action is subject to reversal only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

That standard was not met here, Garbis said, “considering the aims and structure of the Clean Air Act’s model of cooperative federalism.”

The agency’s action “was permissible in light of the fact that California law did not authorize the San Joaquin Air Control District to require permits for the agricultural sources involved,” Garbis added.

The opinion was joined by Senior Judge Mary M. Schroeder and Judge Barry G. Silverman.

The case is Association of Irritated Residents v. U.S. Environmental Protection Agency, 13-73398.


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