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New Smog Measures Are Ordered

Federal appeals court says the EPA erred in blaming Mexico for harmful haze in the Imperial Valley and must develop controls.

October 10, 2003|Gary Polakovic | Times Staff Writer

A federal appeals court ruled Thursday that the U.S. Environmental Protection Agency had erred in blaming Mexico for unhealthful air quality in the Imperial Valley and that the agency must impose more stringent control measures on the U.S. side of the border.

The decision by the 9th U.S. Circuit Court of Appeals targets soot and dust in a remote corner of California -- southeast of Indio along an 80-mile shared border with Mexico -- where some of the nation's highest concentrations of harmful haze occur.

Although concentrations of microscopic airborne particles in Imperial County sometimes exceed health-based limits by a factor of two, the EPA two years ago concluded that industrial activity on the U.S. side of the border was not responsible. The agency determined that winds carried emissions north from the fast-growing Mexicali area, pushing pollution levels in the Imperial Valley beyond limits established under the federal Clean Air Act.

Environmentalists sued the EPA to force more stringent controls on farms, mines, factories and developers in the valley. The Sierra Club argued that the EPA should have declared the entire valley in serious noncompliance for haze-forming pollutants, called PM10, nearly a decade ago. That designation, which the court ordered on Thursday, triggers new emissions controls that must be developed by local, state and federal agencies.

"This is a big victory. It is long overdue," said David Baron, attorney for the Earthjustice Legal Defense Fund, which represented the Sierra Club in the case. "The Imperial Valley has some of the highest childhood asthma rates in the state and high levels of death from respiratory disease. The high levels of PM10 pollution are undoubtedly a contributing factor. Yet it has fewer pollution controls than other communities with less-polluted air, like the Los Angeles Basin or the Coachella Valley or Phoenix."

Microscopic particles in haze lodge deep in the lungs. Many recent health studies have shown that the pollutants -- a mix of diesel soot, tire fragments, oil droplets and soil -- can cause cancer, respiratory disease and premature death. In 1997, the EPA developed new, more rigorous standards to control the pollutants.

But agricultural interests warned that new controls on farms would meet stiff resistance. Imperial County produces $1.2 billion worth of carrots, lettuce, alfalfa, sugar beets and other products annually.

"We are seriously disappointed with the decision and very concerned with the ramifications of the decision. We want to look into it and make sure it doesn't affect the farmers," said Nicole Rothfleisch, executive director of the Imperial County Farm Bureau.

Rothfleisch said that a decision had not been reached on whether to appeal the ruling.

The valley was required under the Clean Air Act to meet federal standards for particle air pollution by the end of 1994, but missed that deadline. Next, the EPA was required to impose more rigorous cleanup standards, but the agency declined to do so. Instead, it blamed Mexico for the pollution and exempted U.S. sources from additional controls.

A panel of three judges on Thursday concluded that the EPA, which had relied on data provided by California agencies, had failed to prove that all of the excessive smoke and dust had been caused by activity in Mexico. The court concluded that the EPA had relied on faulty data and misinterpretations of pollution and wind measurements.

"Based on the data and the reports in the record, there simply is no possibility that Mexican transport could have caused the observed PM10 exceedences," the court concluded.

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