EPA admits goof, will soon detail ozone plans — filing

Source: Sean Reilly, E&E News reporter • Posted: Wednesday, January 17, 2018

U.S. EPA officials, acknowledging a recent mistake, sought to clear up confusion Friday about their immediate intentions for enforcement of the 2015 ground-level ozone standard, but said in a legal filing they need another week to flesh out a schedule.

While the agency recently announced an April 30 “goal” for finishing up the area attainment designations for the 70 parts per billion standard, it “is still determining the specific details” of its plan, according to the status report, submitted late Friday to the U.S. Court of Appeals for the District of Columbia Circuit. More information will be forthcoming in a follow-up report this week, Justice Department attorney Norman Rave wrote in the filing.

In response to motions from both Democratic-led states and public health advocacy groups that have brought legal challenges, the appeals court had ordered EPA to report by the Jan. 12 deadline. The court asked for “precision and specificity” on its timetable for making the designations, which were supposed to have been completed by last October.

But in a separate suit, launched last month in the U.S. District Court for the Northern District of California, many of the same advocacy groups are asking a judge to make the April 30 goal legally binding. EPA will reply to that request this week, Rave wrote in explaining the need for a short grace period.

Rave also disavowed an official “statement of priorities” released last month that seemed to indicate EPA was still pursuing a blanket one-year extension of all attainment designations, even though Administrator Scott Pruitt had formally dropped that idea in August. The statement was “erroneous,” Rave wrote, and “does not change the fact that the extension has been withdrawn and has no legal effect.”

In the days after the statement was released, however, Pruitt’s office made no attempt to publicly correct the mistake. In court filings, lawyers for the states and advocacy groups highlighted it as evidence that the extension bid — which would have pushed back all attainment designations until October 2018 — was still in play. Their arguments resonated with a three-judge panel on the D.C. Circuit Court, which cited them in ordering last Friday’s status report E&E News PM, Dec. 19, 2017).

Ozone, the prime ingredient in smog, is tied to asthma attacks in children and wider-ranging problems in people with chronic lung diseases. Under the Obama administration, EPA had set the 70 ppb standard in October 2015 on the grounds that a stricter threshold was needed to adequately protect public health in light of fresh research on ozone’s dangers.

The attainment designations are a significant first step in enforcement because they start the clock for states to come up with cleanup plans for areas that are out of compliance.

In November, EPA deemed the bulk of the country in attainment for the 70 ppb standard, but delayed decisions for areas in Texas, California and other states that are unlikely to meet the threshold. Late last month, in a sign that the agency is moving forward, EPA officials gave the required four-month notice of instances in which they plan to change states’ recommendations, turned in more than a year ago.

The erroneous statement of priorities that kicked off the latest round of legal wrangling has been corrected “to remove any reference to the withdrawn extension,” Rave wrote in the Friday filing.

The litigation before the D.C. Circuit was initially brought to challenge that extension; since it has now been withdrawn, Rave reiterated the suits should be dismissed as moot. The American Lung Association and other plaintiffs say the litigation should be kept alive until EPA makes all attainment designations.

Click here to read the original statement of priorities, released last month as part of the Trump administration’s latest regulatory agenda.

Click here to read the corrected version.