In a settlement with community, public health, and environmental groups concerned about air pollution in the Central Valley, the US Environmental Protection Agency agreed to better regulate air pollution from diesel irrigation pump engines in California.

The settlement follows a lawsuit filed last May after the Bush administration issued permit applications to agricultural sources of air pollution in California requesting that they “estimate” their own “actual” emissions from diesel irrigation pump engines in order to determine whether they needed a permit. The Clean Air Act, however, does not allow sources to guess what their own emissions are likely to be. The law requires sources to be regulated on the basis of their “potential to emit.” The coalition of groups called EPA’s shortcut “regulating with a wink and a nod,” basically tempting farmers to underestimate their own emissions so that they could avoid applying for permits. By the May 1, 2003, deadline, EPA had received only 18 applications for permits, a much lower number than expected due to the overly lax guidance accompanying the permit applications.

Clean air activists sued EPA, knowing that the agency would be unable to defend its approach in court.

According to the settlement agreement, EPA will withdrawal the previous guidance, issue new permit applications regulating sources based on the “potential to emit” standard for diesel engines, and set a new date of November 13, 2003, to collect applications from sources.

“EPA was sending the message to agricultural sources in California and to polluters everywhere that you don’t need to obey the Clean Air Act. EPA had to correct that message,” said Anne Harper of Earthjustice, who represented the Sierra Club, Medical Advocates for Healthy Air, and Our Children’s Earth Foundation in the suit.

Under the settlement agreement:

(1) EPA will withdrawal the guidance it issued that relied on the source’s own estimate of its actual levels of emissions;

(2) EPA will issue new guidance within 30 days that “better explains a facility’s ‘potential to emit’ in the context of diesel engines used as agricultural pumps.”

(3) EPA will require applicants to re-apply for air pollution permits by November 13, 2003, using the new guidance.

“The Clean Air Act requires major sources to be regulated based on their ‘potential to emit’ to prevent sources from rigging the game,” explained Brent Newell an attorney for the Center on Race Poverty and the Environment who represented the Association of Irritated Residents. “Asking farmers to guess how many hours they intend to run irrigation pump engines over the next year opened up an enormous opportunity for them to avoid regulation and be rewarded for guessing wrong.”

“The Bush administration has a habit of making rules that benefit polluters and hurt ordinary Americans,” said Kevin Hall an activist with the Sierra Club based in Fresno. “We have fought hard to get the agricultural industry regulated like any other industry. This settlement helps level the playing field.”

“Diesel pollution is now understood to be carcinogenic. It also contains fine particulates that can cause heart attacks,” said Dr. David Pepper of Medical Advocates for Healthy Air in Fresno. “The fall is particulate air pollution season in the Central Valley, and this time is unfortunately known as ‘heart-attack season’ by folks in the medical field.”

“In an area where children suffer from asthma at triple the national rate, we cannot afford to create new loopholes for polluters. We need to clean up the air,” said Tiffany Schauer of Our Children’s Earth. “This settlement sends the message that all major sources of air pollution need to play by the same rules.”