In a week when Fresno residents are breathing concentrated particulate matter air pollution associated with a junk fire southwest of the city, a coalition of medical, community, and environmental groups filed a petition today asking the Ninth Circuit Court of Appeals to review the Environmental Protection Agency’s approval of Regulation VIII, a set of rules governing fugitive dust pollution in California’s San Joaquin Valley. The coalition includes: Medical Advocates for Health Air, Latino Issues Forum, and the Sierra Club.

“Farming operations account for nearly 25% of all particulate emissions in the Valley and unpaved roads create another 25% of the particulate matter. So the loopholes in Regulation VIII exempt nearly half of all sources. That is not regulation; that’s playing favorites,” said Kevin Hall with the Tehipite Chapter of the Sierra Club, based in Fresno.

The Clean Air Act as amended in 1990 requires local air pollution control districts to submit cleanup plans in areas polluted by particulate matter, or PM. Districts were to implement all “reasonably available control measures” (known as RACM) by 1993 and the “best available control measures” (BACM) by 1997. On January 22, EPA conditionally approved Regulation VIII, a set of rules to control airborne dust emissions from unpaved roads, construction sites, open areas, and bulk materials. EPA admits the rules do not constitute the best available control measures. But, while recognizing that the local air district has yet to demonstrate that the rules represent even reasonable control measures, and in fact giving the district yet another year to actually submit the demonstration required by law, EPA nonetheless issued a finding that the rules do meet the RACM requirement. The groups filing the lawsuit contend that the regulation as approved will not clean up the air and should be rejected by the court.

Last week, EPA issued the final rule being challenged in this lawsuit. Regulation VIII, as it stands:

1. Exempts all on-field agricultural sources altogether;

2. Does not count “implements of husbandry” from vehicle trip counts so that unpaved farm roads escape regulation;

3. Exempts all farms under 320 acres from control, even though they create the same dust per acre as large farms, and;

4. Includes handling of animal feed within the “on-field” exemption, effectively exempting concentrated animal feeding operations from regulation.

“The approved plan was a sweetheart deal written behind closed doors by industry and EPA as a way to avoid the cutoff of federal highway funding and to duck EPA’s obligation to prepare its own cleanup plan,” said Mike Sherwood, an attorney with Earthjustice who is representing the coalition. “I believe that any court looking at EPA’s action will reject Regulation VIII and send the agencies back to the drawing board to finally get serious about cleaning up particulate air pollution in the Valley.”

Particulate Air Pollution – A Known Killer

According the Environmental Working Group report Particle Civics, airborne soot and dust causes or contributes to the deaths of more Californians than traffic accidents, homicide and AIDS combined. View the report online at: http://www.ewg.org/reports/particlecivics/.

“We have found that particulate pollution is the most harmful form of air pollution to the human lung,” said Kevin Hamilton, asthma program coordinator for Community Medical Center in Fresno and member of Medical Advocates for Healthy Air. “Scientific studies show that PM causes reduced lung function, aggravates lung diseases including asthma, slows normal lung development in all children under 14, and causes premature death.”

The effects of particulate matter are especially hard on communities of low socio-economic status, such as Latinos and African Americans. “Low-income communities are disproportionately represented among the ranks of people with asthma. They face more asthma deaths and hospitalizations,” said Ray Leon from Latino Issues Forum’s Fresno Chapter. “Air pollution is a major problem in communities with limited access to healthcare and health insurance. Many have never received a proper diagnosis or treatment for asthma on the day they arrive in the emergency room gasping for breath.”

Weak Plan – A Decade Late

Despite the fact that the San Joaquin Valley is classified as a “serious” nonattainment area for particulate matter, it has never produced a cleanup plan that EPA has found approvable. The Clean Air Act deadline set for producing this plan was 1993.

EPA rejected a prior version of Regulation VIII in March 2000. That disapproval triggered a 24-month clock for the local air pollution control district to submit a revised regulation or face the loss of certain federal highway funding under a provision of the federal Clean Air Act. Also, where a local district does not submit an approvable revised regulation within 24 months, EPA must step in and prepare a federal cleanup plan.

In November 2001, with EPA under pressure to approve a revised Regulation VIII or take responsibility for developing the cleanup plan itself, EPA and industry met behind closed doors without the local air district staff to prepare an alternative labeled “Option 4: Regulation VIII from EPA/Industry Discussions.” That EPA-Industry alternative was presented to the local air district board for approval on November 15, 2001 with no staff review, but also no prior public notice, comment or hearing. EPA thereafter proposed to approve Regulation VIII in April 2002, and determined that the air district had corrected Regulation VIII’s deficiencies in order to stop the clocks running for sanctions and the federal cleanup plan.

View EPA’s Final Rule being challenged here.