Air-Quality Plan Passes Ninth Circuit Scrutiny

     SAN FRANCISCO (CN) — The Environmental Protection Agency was largely correct when it approved Arizona’s plan to reduce harmful air emissions, the Ninth Circuit ruled Monday.
     Arizona’s so-called Five Percent Plan, which the EPA approved in 2014, was intended to show the state had reduced emissions of harmful gas PM-10 by at least 5 percent over a five-year period. However, the plan excluded from its data 135 “exceptional events” in which PM-10 emissions exceeded air-quality standards from 2011 to 2012.
     According to Monday’s Ninth Circuit ruling, those events were allowable and the EPA did not need to reevaluate Arizona’s control measures.
     The dispute stems from a 2014 petition by two Phoenix residents, Sandra Bahr and David Matusow, who argued the EPA erred by approving Phoenix’s plan. The petitioners took issue with the 135 “exceedances,” as well as Arizona’s contingency measures, which they said had already been implemented in the state.
     PM-10 is an inhalable air particle that is typically smaller in diameter than 10 micrometers. Nationally, PM-10 levels have decreased by 39 percent since 1990, according to the EPA.
     PM-10 levels in the Southwest, which includes Arizona, have decreased 16 percent since 2000, according to the EPA. However, data shows several spikes of PM-10 concentration during that period.
     In 1990, Congress designated the Phoenix metropolitan area as a “moderate” PM-10 area, but in 1994 lawmakers upgraded that designation to a “serious” PM-10 area. Arizona has struggled to meet air-quality standards since, even applying for extensions to meet various EPA deadlines.
     By 2006, the Phoenix region, called the Maricopa Area, had still failed to meet air-pollutant standards and after some back and forth, Arizona filed a proposal in May 2012 to reduce PM-10. The proposal became known as the Five Percent Plan.
     The Five Percent Plan proposed several actions to reduce the air pollutant, most of which involved paving roads and lowering speed limits, but it specifically excluded agricultural changes, something Arizona’s previous proposals had included. The Five Percent Plan also explained that 135 exceedances from 2011 to 2012, in which PM-10 daily levels rose higher than EPA standards, were mostly the result of monsoon-caused dust storms.
     The EPA approved the Five Percent Plan in June 2014, and Bahr and Matusow petitioned for review, complaining that Arizona had not updated its control measures beyond those from 2000.
     In Monday’s Ninth Circuit’s ruling, Judge Sandra Ikuta wrote that the 135 exceedances—some of which included harmful air pollutants such as PM-10—were “exceptional events” and that PM-10 “can be affected by natural events such as dust storms.”
     Further, the Clean Air Act does not require states to update their standards when submitting a proposal like the Five Percent Plan, nor does it require the EPA to reassess a state’s controls for each submission, Ikuta wrote.
     “Arizona did not propose any revisions to its agricultural controls in the Five Percent Plan, however, so EPA did not have any occasion to reevaluate those measures,” Ikuta wrote.
     The Ninth Circuit also dismissed Bahr and Matusow’s argument that wind storms brought on by agricultural activities could have accounted for many of the 135 exceedances, finding that the EPA control measures “ensured that anthropogenic windblown dust was reasonably controlled.”
     However, the San Francisco-based appeals court disagreed with the EPA on one point: that Arizona be permitted to include as contingency measures steps that it had already taken, such as paving roads.
     “This is a misreading of the statute,” Ikuta wrote, finding that legal language indicated contingency measures were ones “to be undertaken,” not those already undertaken.
     In a separate opinion that dissented in part, Judge Richard Clifton wrote that Arizona should have been able to include the already paved roads as contingency measures in the Five Percent Plan.
     “It does not benefit ordinary citizens to read the [Clean Air Act] to incentivize states to hold off from purchasing new street sweepers or repaving their roads until the contingency measures requirement is triggered,” Clifton wrote.