The action EPA is taking is unprecedented. Never before has EPA had to go back and re-affirm an attainment determination, because generally EPA will not make such an important decision without the data to back it up.
"The Clean Air Act does not allow EPA to make a decision and then manufacture a reason for that decision a year later," says Paul Cort, staff attorney with Earthjustice. "This is a blatant example of manipulating the science to fit the desired outcome."
Earthjustice challenged the October 2006 attainment determination in court, arguing that the violations of the health-based standard cannot be ignored without proper documentation and public participation.
Today's proposal attempts to go back and justify EPA's decision to ignore the violations that occurred last fall in response to Earthjustice's challenge. EPA is proposing to accept the state and local district's claims that the violations were caused by "unusually high winds."
"Their excuses for ignoring these violations changed with every draft," says Sarah Jackson, air quality researcher with Earthjustice. "First it was forest fires, then windblown dust from Sacramento. Now the claim appears to be that some kind of dust storm raged from the west side of the Valley down to Bakersfield, but our analysis shows that the winds that day were no more than a gentle breeze."
Last fall, Sierra Club's Kevin Hall said of EPA's attainment determination, "It's either a miracle or a lie." Now, Hall is unsurprised by EPA's action and says, "If EPA put half the effort into cleaning the air that it is making now to deny the problem exists, Valley residents might have had clean air by now."