Court orders EPA to set timetable for ozone designations

Source: Sean Reilly, E&E News reporter • Posted: Thursday, December 21, 2017

A federal appeals court is ordering U.S. EPA to spell out its timetable for remaining compliance decisions related to its 2015 ground-level ozone standard.

In the order, issued late yesterday and in the wake of contradictory signals from EPA, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit instructed agency officials to report “with precision and specificity” by Jan. 12 on when they will issue a final rule to set remaining attainment designations for the 70 parts per billion standard.

Under the Clean Air Act, all designations were due at the beginning of October. While the agency last month effectively declared about 85 percent of United States counties in attainment, it has yet to make final decisions for heavily populated metro areas like Los Angeles, Houston and New York City that will likely be out of compliance, based on state recommendations submitted more than a year ago.

EPA is reviewing the order, spokesman Jahan Wilcox said this morning.

Last week, Bill Wehrum, the agency’s recently installed air chief, indicated the remaining designations would be coming by this spring. But days later, the agency clouded that forecast with the release of a list of regulatory priorities that appeared to indicate it was still pursuing a formal extension of the October deadline that EPA Administrator Scott Pruitt had withdrawn in August.

The agency has so far not explained the discrepancy, but Democratic-led states and advocacy groups, which are suing to enforce the October deadline, cited it in court filings this week as reason to keep their litigation alive (E&E News PM, Dec. 19). Yesterday’s order from the three-judge panel references those filings.

It “seems like they want a straight answer from EPA, rather than all the evasion, confusion, and delay that’s been coming from the agency,” Seth Johnson, an Earthjustice attorney who is representing the coalition of public health and environmental advocacy groups, said in an email.

Perhaps notably, the panel includes two members, Judges Judith Rogers and Patricia Millett, who in a separate case last month upbraided EPA attorneys over the agency’s bid to wait until 2019 to finalize emissions standards for brick kilns that were originally due in 2000 (Greenwire, Nov. 9).

Ozone, a lung irritant that is the main ingredient in smog, is linked to asthma attacks in children and worsened breathing problems for people with cystic fibrosis and other chronic respiratory diseases. In October 2015, EPA tightened the standard from 75 ppb to 70 ppb on the basis of recent research showing that ozone is damaging at lower levels than previously thought.

For enforcement purposes, the attainment designations are a crucial milestone because they start the clock for states to come up with cleanup plans for areas that are out of compliance. But in his previous post as Oklahoma’s attorney general, Pruitt, a Republican, joined in the legal challenges to the 70 ppb standard, which is also opposed by the oil and gas industry and other business interests, which noted that regulators are still implementing the previous 75 ppb standard set in 2008. As EPA chief, Pruitt has been in no evident hurry to enforce it.

In June, Pruitt announced a blanket one-year extension that would have pushed back the deadline for all attainment designations until October 2018. He did a U-turn two months later and withdrew the extension following the suits by states and advocacy groups. He has so far offered no legal justification for failing to make the Oct. 1 deadline.

In response to a congressional directive, EPA has also created what’s been dubbed the Ozone Cooperative Compliance Task Force to examine ways to ease the compliance process for the 2015 standard. The group’s impact remains unclear; it has held no public meetings, and agency officials have not said who is on the panel.

In a brief interview last week following her appearance at an EPA advisory committee, Brittany Bolen, the agency’s deputy associate administrator for policy, declined to disclose the group’s members, saying that it is an “internal task force.”