Los Angeles Fails With Dust Pollution Claims

FRESNO, Calif. (CN) - California and federal agencies should not face claims over their demand for Los Angeles to improve air quality at Owens Lake, a federal judge ruled.

In 2011, the Great Basin Air Pollution Control District ordered the city of Los Angeles to improve reduction efforts against dust storms and air pollution in the arid Owens Lake bed, or playa.

The city and its Department of Water and Power responded in October 2012 with a federal complaint that said the orders were illegal and placed an unreasonable burden on its taxpayers.

Los Angeles noted that, since 1998, Angelenos had already paid $1.2 billion to mitigate the dust on 42 square miles of the Owens lake bed.

The agency's orders under a section of California's Health and Safety Code would waste 95,000 acre-feet of water to mitigate dust in an area where "dust is naturally occurring," according to the city's first amended complaint, filed in November.

It claimed that "95,000 acre-feet of water is more water than is consumed by the city of San Francisco in one year."

Los Angeles began draining Owens Lake, on the eastern side of the Sierra Nevada, in 1913, sending its water into the Los Angeles Aqueduct. Many people know of the tremendous power struggle over the water through the 1974 Jack Nicholson movie, "Chinatown."

Residents of Inyo County claimed that Los Angeles was stealing its water for the insatiable needs of the city. Owens Lake once covered 108 square miles and was up to 50 feet deep. Today much of the old lake bed is a mud and salt flat. In certain conditions, winds cause akaline dust storms that carry away as much as 4 million tons of dust and dirt from the lake bed each year. The lake itself, much shallower than it was, covers no more than 27 square miles today.

Owens Lake is the "largest single source of particulate matter air pollution in the country," according to the Los Angeles Times. Children and the elderly are vulnerable to particulate pollution and the respiratory injuries it can cause.

The air pollution control district said that Los Angeles has caused more than 25 health alerts in Owens Valley over 12 months by violating federal and state air standards.

"The transfer of water previously flowing into Owens Lake reduced the lake to a dry bed that is an abundant source of very fine particulate matter less than 10 microns in diameter [PM-10] that is readily blown into the air," according to the court's latest ruling.

U.S. District Judge Anthony Ishii disagreed Thursday with Los Angeles that it would contravene the Clean Air to find it wholly responsible for dust control measures.

"There is no reason in law or logic that city should not be deemed by district an 'operator' of the playa in proportion to the area that is dry as a consequence of their activities upstream," the 21-page order states.

"For purposes of the CAA, ownership or management of the land underlying a pollution source is mostly irrelevant to the question of liability," Ishii added, abbreviating Clean Air Act. "What is more determinative of liability is the identity of the people or entities that have control over the activities that directly or indirectly cause the pollution. The court finds that city is a significant 'operator' of the playa for purposes of the mitigation requirements of the CAA."

Under a 2006 settlement with the agency, the city agreed to expand pollution controls from 29.9 square miles of Owens Lakes to 43 square miles, the court's order states.

Los Angeles urged the court to invalidate further dust-control measures in the absence of Environmental Protection Agency approval.

Judge Ishii refused, however, noting that the Clean Air Act did not override the air pollution control district's orders.

The court also dismissed the city's 14th Amendment claims for equal protection and due process, so as not to interfere with the city's pending disputes in Los Angeles and Kern County courts.

An "important state interest" justified the court's abstention, Ishii wrote.

"The playa is a major source of dust that causes citizens up to 200 miles distant to experience hazardous levels of PM-10 pollution. In apportioning the costs of mitigation, section 42316 [of the Health and Safety Code] reflects the commonly applied principle that one who benefits by causing hazardous pollution, the effects of which are suffered by others, is obliged to mitigate or pay the costs thereof," the ruling states.

The economic toll on Owens Valley restricts its ability "to contribute significantly to the mitigation effort," according to the order.

"In sum, section 42316 is California's legislative response to promote its important interest in the promotion of citizens' health, balancing that interest with its interest in securing adequate water for its metropolitan areas and apportioning the costs that arise from the balancing of those interests in a way that assures both effectiveness and political acceptability," Ishii added.

Great Basin's Air Pollution Control Officer Ted Schade called the ruling "an important victory for every person in California that cares about clean air and a healthy environment."

"It also sends an important message to the LADWP [Los Angeles Department of Water and Power] ratepayers who are paying for this strategy of almost endless lawsuits," Schade said in a statement.

Thursday's ruling marks the third defeat for Los Angeles after the city dismissed two state court lawsuits against the agency and the California Air Resources Board, the agency noted.

The air board also found the city liable for poor air quality because of water transfers from Owens Lake. Los Angeles had challenged that decision in state court last year.

In its statement, the air board noted that Los Angeles "also faces civil penalties and an injunction for its refusals to pay its fees related to the air pollution measures to the district. Trial in that matter is set for Kern County Superior Court in October 2013. The city could face penalties of nearly $8 million."

The U.S. Department of Justice, U.S. Environmental Protection Agency and California Attorney General's Office filed legal papers challenging the merit of the city's federal complaint, the air board added.

Mayor Antonio Villaraigosa backed the city's federal lawsuit.

Los Angeles did not immediately respond to an emailed request for comment.

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