Ruling criticizes EPA’s handling of air quality

Thursday, Aug. 30, 2001 | 11:05 a.m.

A persistent critic of Clark County's air-pollution control efforts has won a partial victory in a federal appeals court.

The case, filed and represented by Robert Hall, is one of numerous lawsuits Hall has filed challenging federal, state and local governments' environmental actions.

The 9th U.S. Circuit Court of Appeals, based in San Francisco, determined that the Environmental Protection Agency erred in accepting air-pollution rule changes without a thorough investigation of their consequences. The rules govern the local review of new sources of pollution throughout the county.

Judge Richard A. Paez's decision doesn't say the rules aren't valid, just that the EPA needs to fully determine their impact. The issue arises because the region is not in compliance with the federal Clean Air Act.

Southern Nevada is required to develop and implement EPA-approved plans for the two contaminants because the region has violated federal health-based standards for dust, which largely comes from desert soils, and carbon monoxide, which mostly comes from vehicle exhaust.

The EPA is still evaluating the two plans developed by county government. The source review rules, which can require new or modernizing companies to use expensive equipment to cut air pollution, are central to both plans.

Staffers from local and federal agencies said Wednesday that they do not know what impact the decision will have. Private-sector attorneys said the decision might, or might not, have a significant impact on the region.

Gary Bryner, a law professor with the Natural Resources Law Center at the University of Colorado, said the decision can be interpreted as a narrow, technical issue. If so, Paez's decision won't necessarily stop the EPA from approving the local air-pollution control plans.

"They are just saying look at it again, and look at it more seriously," Bryner said. "The EPA has to do more than it did. It has to make sure the proposed revisions will really be sufficient to get the kind of (air pollution) reductions that are promised."

The in-depth look at the rules could slow down approval of the local plans, Bryner said, but "I don't think that takes very long."

But William H. Freedman, an attorney with the McCutchen law firm based in San Francisco, said the impact could be bigger. If the court decision is interpreted as throwing out the source review rules, then permitting regulations now in place could be invalid, he said.

"It is an exciting decision," he said. "It is sort of coming out of left field.

"New source review is the only way to compel developing and modernizing industry to control pollution."

Clark County Air Quality Management and EPA staffers said they do not yet know the potential impact of the ruling. They said the issue needs to be reviewed by the agencies' attorneys.

"Pending further review, we are continuing to operate as we have operated," said Catherine MacDougall, assistant air quality management director for the county.

But the man who filed the lawsuit challenging the rules said the impact could be huge.

Hall, president of the Nevada Environmental Coalition, said the potential impact could throw out at least the last two years of new air pollution rules and permits for industries that produce air pollution.

"It is a major, major defeat for both the county and the EPA," Hall said.

He said the decision would be "the worst financial disaster" for the county, arguing that fines and costs charged to polluting companies are not legally valid.

Hall, a fierce critic of the past and present agencies that have drafted and implemented air pollution rules, said all local pollution-control decisions by local agencies from July 1999 through the present are illegal.

"The (source review) rules are the heart of their whole program," Hall said.

Paez ruled that the local Air Quality District's "new source review program," enacted in 1981, didn't get satisfactory EPA evaluations. The EPA approved the source review program in 1999 as part of a larger review of two federally mandated pollution control programs, for fine dust and for carbon monoxide.

" ... We question whether the EPA assessed the adequacy of the revised new source review program to the task of meeting current attainment requirements," Paez wrote. Paez also rejected several of Hall's claims against the EPA, including arguments that the public did not have an adequate opportunity to comment on the air-pollution plans and rules that back them up.

Hall said, "We certainly are going to insist that the rules that they approve will clearly reduce the air pollution here."