Feds Defend Dust-Control Plan in Ninth Circuit

(CN) — The Environmental Protection Agency's plan to control dust in the Phoenix area excluded 135 events in which dust levels exceeded air-quality standards, two residents' attorney told the Ninth Circuit on Friday.

For more than 30 years, Maricopa County, Ariz., failed to meet Clean Air Act dust standards until May 2014, when the U.S. Environmental Protection Agency approved a revision to the Arizona State Implementation Plan relating to airborne-particulate pollution.

Two Phoenix residents, Sandra Bahr and David Matusow, filed a petition to review the decision in October 2014.

Joy Herr-Cardillo, an attorney with the Arizona Center for Law in the Public Interest, argued Friday in front of a three-judge panel of the Ninth Circuit that it was an "abuse of discretion for EPA to allow the State of Arizona to exclude" 135 "exceedances" from the plan.

The exceedances were high-wind events, the EPA said, and qualified for exclusion from the plan because they were "exceptional events" brought on by natural causes.

"One of the things I really want to emphasize here this morning is the sheer magnitude of data that is being excluded here," Herr-Cardillo said. "We are talking 135 exceedances over 25 days, and that's just over a two-year period."

Ninth Circuit Judge Sandra Ikuta questioned whether it is up to the court to determine if the EPA's decision to exclude the events is unreasonable.

"Agricultural emissions were a big part of this," Herr-Cardillo answered. The plan shouldn't have been approved, she claimed, without the EPA addressing earlier conclusions it made regarding the lack of controls on agricultural emissions in the area.

"Their guidance isn't binding," Ikuta said. "They gave reasons. You might not find them persuasive, but they certainly provided them."

Herr-Cardillo also argued the EPA failed to require Arizona to show it was in compliance with the Clean Air Act.

They are relying on agricultural best-management practices, or BMP, and "other control measures in order to be allowed to exclude the data," Herr-Cardillo replied.

Arizona elected "not to include that BMP rule because it knew it wasn't [best applied control measures]," she added.

Alan Greenberg, an attorney for the U.S. Department of Justice, said the EPA's approval of the plan came after the state submitted "voluminous data" supporting Arizona's plan to control dust.

Greenberg denied that agricultural emissions were the cause of the 135 events in question.

"What we are dealing with is winds picking up dust from undisturbed deserts," Greenberg said. "There was less than 1 percent contribution from agricultural lands within the non-attainment area."

On rebuttal, Herr-Cardillo reiterated that the plan only meets EPA approval if these events are excluded.

"We've got paper attainment, where they demonstrate attainment by ignoring data, and we've got the actual air quality," Herr-Cardillo said.

Judge Richard Clifton and U.S. District Judge William Hayes, a visiting judge, also sat on the panel.

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