In the settlement, the EPA agreed to find that California was not implementing the Clean Air Act and will propose to withdraw its December 7, 2001, approval of California's Title V program that granted an exemption to agricultural sources of air pollution. Agriculture has been shielded from state regulation by a provision of state law that prohibits local air districts from requiring permits for "any equipment used in agricultural operations in the growing of crops or the raising of fowl or animals." No other state in the country specifically exempts agricultural operations from air pollution permitting requirements.
"Major agricultural sources of air pollution must be regulated if we ever hope to breathe healthy air in the southern San Joaquin Valley," said Tom Frantz, Chairman of the Association of Irritated Residents.
"Ending California's agriculture exemption for clean air standards should have happened a decade ago," said Kevin Hall, of the Sierra Club's Tehipite Chapter – Fresno. "Why must citizen groups be forced to litigate just to get public health laws enforced? This should be the job of regulators."
Removing Exemptions for Major Pollution Source
The EPA Administrator's authority to approve state permit programs is governed by Clean Air Act Section 502(a), under Title V, which states. "the Administrator may not exempt any major source from such requirements." With this settlement, the EPA agreed that major agricultural sources of pollution, including factory farms, must obtain operating permits under the Clean Air Act.
"It is long overdue for Big Ag to do its fair share to clean up our air," said Brent Newell an attorney for the Center on Race, Poverty and the Environment based in Delano. "When the largest agribusinesses are required to get air pollution permits, this will level the playing field for other business sectors that already obey the Clean Air Act."
Anne Harper, an attorney for Earthjustice who was co-counsel in the lawsuit said, "Asthma is now the leading cause of hospital admissions of young children in California, with over 7,000 children in Fresno alone suffering from the disease. Now that California agriculture is no longer exempt from the Clean Air Act, it is going to have to become part of the solution instead of the problem when it comes to air quality in the Central Valley. This is an issue of public health."
The EPA will propose to administer the operating permit program for the agricultural sources, assuming control from California's 35 air pollution control districts. Until the California legislature amends state law to remove the exemption, the EPA will retain regulatory authority over agricultural sources.
"This action will bring California into alignment with the other 49 states whose agricultural industries already operate under the Clean Air Act," said John Walke, Director of the Clean Air Program for the Natural Resources Defense Council.
California Must Remove the Agricultural Exemption or Face Sanctions
The settlement now forces the state legislature to choose between favoring industrial agriculture and factory farms or facing sanctions that affect the rest of the State. Under the settlement, EPA will issue a finding, called a Notice of Deficiency, detailing California's failure to properly implement the Clean Air Act. The Notice of Deficiency initiates a process that could severely harm other sectors of California's economy if agriculture's special exemption is continued: increased pollution offset requirements will take effect on November 15, 2003, and California will lose its federal highway funding on May 15, 2004. If the legislature amends the law and ends the agricultural exemption, California will avoid these sanctions.
The lawsuit, called a Petition for Review, was filed in the federal Ninth Circuit Court of Appeals in San Francisco. The Clean Air Act allows for citizens to challenge EPA actions implementing the act, a measure designed to deter the EPA from violating the law Congress charged it to enforce.
Agricultural Sources Subject to the Clean Air Act
The San Joaquin Valley is one of the most polluted air basins in the nation and home to the vast majority of California's factory farms. On November 8, 2001, the EPA officially redesignated the Valley's ozone nonattainment status from "serious" to "severe." More commonly known as smog, ozone forms during a chemical reaction between volatile organic compounds (VOC) and oxides of nitrogen (NOx).
Agricultural sources that will be subject to the permit program will include those that emit certain levels of either ozone forming pollution or particulate matter. Decomposing manure at factory dairy farms emit VOCs while diesel irrigation pumps emit NOx. The San Joaquin Valley Air Pollution Control District recently ranked livestock waste, most of which comes from San Joaquin Valley dairies, as the second largest source of VOCs in 1999. By 2005, livestock waste will be the largest source. The California Air Resources Board found that dairies alone emit 10 percent of the Valleys total VOC emissions.
The American Lung Association in its State of the Air: 2001 report identified Bakersfield, Fresno, and Visalia-Tulare-Porterville as three of the five most smog-polluted cities in the nation. Smog exacerbates respiratory conditions, like asthma, and has been linked to decreased lung function and capacity. Smog has a greater impact on children, the elderly, and people with respiratory illnesses.
The lawsuits to force agricultural compliance with the Clean Air Act were brought on behalf of: the Association of Irritated Residents, Communities for Land, Air & Water, Medical Alliance for Healthy Air, Natural Resources Defense Council, Our Children's Earth Foundation, and the Sierra Club.