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Appeals court rules against valley ozone plan

20210810-bc-AirQuality

A gentleman walks along the Panorama Bluffs in this file photo from Aug. 9.

Federal approval of a 2019 contingency measure for cutting ozone emissions in the Central Valley has been rejected by an appellate court, which called the U.S. Environmental Protection Agency's acceptance of the provision "arbitrary and capricious."

In a lawsuit filed on behalf of Central Valley air-quality advocates, the U.S. Ninth Circuit Court of Appeals ruled Thursday that the approved backup plan — repealing permission to sell small cans of paint — did not meet the EPA's own standard for making sufficient progress toward cleaning up ozone pollution in the valley.

But the ruling did not go entirely in favor of plaintiffs at the Association of Irritated Residents: The court also said the "enhanced enforcement activities program" approved by the federal EPA as part of the same clean-air plan was a "strengthening measure" rather than a loosening of air quality standards, as AIR had asserted.

The Ninth Circuit's decision forces state agencies and the federal government to revisit their official backup plan of action if other provisions don't achieve anticipated progress toward meeting a standard the region has long been unable to meet.

AIR representative Tom Frantz said by email the air district basically put forward an inadequate ozone cleanup plan.

"We called their bluff," he wrote. "The judge agreed and has told them to fix it."

A lawyer for one of the lawsuit's respondents, the San Joaquin Valley Air Pollution Control District, whose plan the U.S. EPA approved, said by email that next steps have not been defined.

"The district will closely review this recent ruling and engage with its state and federal partners to ensure that the ruling is addressed as needed," district Counsel Annette Ballatore wrote.

The U.S. EPA in 2001 found the valley had failed to attain the one-hour ozone standard in effect at the time. In 2012, the valley was classified as an "extreme non-attainment area" for the eight-hour ozone standard.

The ruling addresses a plan put forward jointly by the air district and the California Air Resources Board for bringing the whole Central Valley into compliance with the ozone standard.

The air district says the plan builds on efforts that have already cut by more than 90 percent the number of days in which valley residents have been exposed to elevated ozone levels. The agency says it is on track to achieve its EPA goal in or by 2023.

When the air district detailed its 2019 plan for the EPA it included a single contingency that would be put into effect if other provisions don't make enough progress toward meeting the ozone standard.

AIR argued the EPA made an unreasonable interpretation of the federal Clean Air Act when it decided that repealing permission to sell small cans of paint was a sufficient backup, even though the measure was estimated to result in emissions reductions of only about 1 ton of ozone per day.

Previously, plaintiffs said, the EPA had said the plan must provide for "reasonable further progress" of at least 3 percent of baseline emissions per year — in this case about 11.4 tons per day.

The EPA argued there is no binding requirement for a particular amount of emissions reduction. But the plaintiffs noted the federal agency previously held that contingency plans should demonstrate reasonable further progress for a year, meaning the 3 percent minimum cut in ozone emissions.

in Thursday's ruling, the court found the EPA could not change that previously established policy on a whim without acknowledging it and saying why the switch was appropriate.

"Because the (federal) agency did not provide a reasoned explanation for approving the state plan," the court ruling stated, "the rule is arbitrary and capricious."

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