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By: Robert Janis

OHVers Learn to Live With Arizona Dust Rule -- A Case Study

The idea of limiting dust in the air in a community that is surrounded by desert seems like a practical impossibility. But Maricopa County, which includes the large metropolis of Phoenix in Arizona, had to come up with a way to comply with Federal Environmental Protection Agency rules. The concerns of off-highway vehicle riders were piqued when it appeared that state and local authorities might try to use the dust rule to close trails and ban OHV use.

So, OHVers and other groups and individuals who have a vested interest in using the trails, worked together to influence the drafting of an air-quality compliance plan that was passed by the Arizona legislature.

History

According to Nick Simonetta, lobbyist for the Arizona Off-Highway Vehicle Coalition and member of the law firm Jennings, Strouss and Salmon in Phoenix, Arizona, the Environmental Protection Agency ruled that an area largely made up of Maricopa County was in non-attainment (or out of compliance) with air- quality requirements under Federal law. The county, the cities within the county, and the state had to come up with a law that assured that the area was in compliance as far as mostly dust particles were concerned.

Groups, businesses, and other entities that were considered to be causes of dust would be impacted by such a law because they could be fined. Moreover, the OHV community was drawn into the mess because the recreation of OHV riding on trails was considered to be a contributor to the dust problem. State and local authorities were threatening to ban OHV use in the non-attainment area.

“If the State of Arizona didn’t take steps demanded by the EPA, it could lose federal highway funds,” said Simonetta. “County agencies, local agencies, state agencies, and the legislature had to deal with the issue. But where OHV was concerned, and its relationship to the overall problem, we needed to work to ensure that a bulldozer wasn’t employed with respect to our ant hill.”

Drafting a Bill

This was the situation when the State Legislature opened its 2007 session, continued Simonetta. It was about this time that Simonetta became associated with the Arizona Off-Highway Vehicle Coalition. He was asked to press for issues favorable to OHVers concerning the air-quality law as well as an OHV funding and management law. The OHV law story was discussed in a previous article.

“Collectively, Arizona had to come up with a plan to reduce particulants in the air by 5 percent,” continued Simonetta. “That is not an easy task considering that Maricopa County was in a desert where dust is common. At various times of the year you have different wind currents and different air flows over the mountains from California, and then it shifts around out of the East, out of the Gulf, and from across the Rockies. Arizona is in a wind funnel that creates different problems, and in different parts of the year, dust particles are trapped within the mountains that surround Phoenix. Moreover, Phoenix is a city with a growing population and a lot of industries that cause dust. They include mining, all forms of construction, agriculture, and more. In addition, there are recreational endeavors that are considered to be causing dust and that includes off-highway vehicle riding as well as other pursuits that are motorized and non-motorized on the area’s trail systems.”

State Senator Carolyn Allen (R-Scottsdale) saw the clear need to unite these groups and have them work with the state in coming up with a solution. “Senator Allen really led on this issue, cobbling together all the industries and people who would be the subject of some pain as a result of the plan,” Simonetta said. In other words, all of these groups knew that there was going to be pain to them as a result of any type of plan so they had to come together with the senator to try to minimize their own pain, while coming up with contributions to a plan that would satisfy regulators.

In addition to the fact that the law would be used to attack the dust problem through the reduction plan, there would also be monitors around the non-compliant region that would sense and measure in real time the particulant problem and this would also be used to assure that the area became compliant.

So, as the legislature was working on the problem, the county was involved with their own plan. “A county air quality process was underway through a group called the Maricopa Association of Governments (MAG), which brought all the governments of Maricopa County together,” explained Simonetta. “It was their job to make recommendations to the State Legislature as well as to the other local governments. One of the recommendations they were considering was an all-out ban of OHV riding in the non-attainment area. MAG had to vote on this issue for it to become a formal recommendation.”

Public meetings in which this issue was debated were held, and Simonetta, Gursh, and the different groups that had a vested interest got involved in those meetings. “We made our own pitch to MAG which said, ‘Look, we are a very small part of your dust problem, and the evidence is that the High Pollution Advisory Days (HAD), which marked when the particulants in the air exceeded EPA rules, occurred on week days. OHV recreational riding takes place largely on the weekend. If OHV riding was a major contributor to the dust problem, then the HAD would occur, at least sometimes, during the weekend, but it doesn’t.’

“We also argued that since the OHV contribution to the dust problem was low, recreational OHV riding had a major influence to the state’s economy,” continued Simonetta. “We told them that there had to be some kind of perspective here.”

MAG accepted the arguments and ultimately came up with a suggestion to ban OHV use only on high pollution volume days. “We were comfortable with that,” said Simonetta. “We realized that we had to give them something to show that we recognized that OHV had some fair portion of responsibility to be a part of contributing to their plan.”

Then the coalition turned its attention to the Legislature. “There were 40 different groups represented, including a lot of the regulated industries like agriculture, mining, all forms of construction, energy companies, refineries, oil companies, in short, all industries that in some measure create dust. We also reminded people that OHV riding was not an industry but rather a recreation. The industry of OHV manufacturing and sales was not a direct contributor to dust. Still, dealers who sell OHVs were involved, too, and were very helpful.”

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