Medical Advocates for Healthy Air, Our Children’s Earth Foundation and the Sierra Club filed suit in the Ninth Circuit Court of Appeals challenging EPA’s implementation of a permitting program to regulate major agricultural sources of air pollution in California.

EPA’s permit application form instructed agricultural operations to “estimate actual emissions” from diesel engines over the next year. However, the Clean Air Act specifically requires sources to determine the diesel engines’ “Potential to Emit.” The difference is that under EPA’s proposed method, far fewer sources will be considered “major sources” subject to permitting requirements under the Clean Air Act. This will lead to more pollution in California, which has four of the top 5 worst ozone pollution areas in the nation.

“EPA is basically regulating with a wink and a nod, telling the farmers what the threshold limit that requires a permit is, and then asking for an “estimate” of what their emissions will be,” said Anne Harper, staff attorney with Earthjustice. “The reporting requirement couldn’t be more lax.”

This is not what is required under the Clean Air Act. Unless a limit on a polluting source is “effective and enforceable,” that source is treated as though it runs 24-hours a day, every day, for the purpose of determining whether or not the source is “major.”

This is especially important now that the air district in the San Joaquin Valley is considering voluntarily moving to an “extreme” ozone nonattainment classification, where a source that emits more than 10 tons per year of nitrogen oxides (“NOx”) or volatile organic compounds (“VOCs”) is considered a “major source” requiring a permit. The San Joaquin Valley is currently in “severe” ozone nonattainment, where a source that emits more than 25 tons per year of NOx or VOCs is considered major. NOx and VOCs combine with atmospheric heat and sunlight to form ground-level ozone or smog.

“It is essentially a decision by EPA to illegally limit the number of agricultural operations that are required to obtain an operating permit,” said Kevin Hall, of the Tehipite Chapter of the Sierra Club.

“Given the abysmal air quality in the San Joaquin Valley, EPA should not be creating illegal loopholes for the agricultural industry, ” said Tiffany Shauer, of Our Children’s Earth Foundation. “This industry is one of the biggest sources of NOx in the Valley.”

Diesel irrigation pump engines run almost continuously during summer months, when the air quality in the San Joaquin Valley is at its worst. “It is during the summer months when people with asthma, especially children, suffer the most,” said Dr. David Pepper of Medical Advocates for Healthy Air.