Suits likely as Pruitt acts selectively on ozone designations

Source: Sean Reilly, E&E News reporter • Posted: Wednesday, November 8, 2017

U.S. EPA Administrator Scott Pruitt is again signaling his determination to slow-walk key compliance decisions for the agency’s 2015 ground-level ozone standard, raising the odds that only a prolonged court battle will settle the issue.

In a final rule signed yesterday, Pruitt declared some 2,650 counties as effectively in attainment with the 70-parts-per-billion standard but avoided saying when the agency will make final decisions for several hundred others, including many that are likely failing to meet that threshold.

While states had turned in their attainment recommendations more than a year ago, “the ozone designation process is complex and requires ongoing and extensive conversations with state and local agencies,” Pruitt said in a news release. “As we move forward, the agency will be able to prioritize, be more responsive to local needs, and move forward on a case-by-case basis.”

Under the Clean Air Act, Pruitt was legally supposed to have made all attainment designations by Oct. 1. In response to a half-dozen written questions from E&E News sent last night, an EPA spokeswoman would only say this morning that the agency does not have a timetable for completing the process “at this time.”

Various states and environmental groups have already formally threatened lawsuits over the delay in recent “notice of intent to sue” letters. Assuming Pruitt takes no further action, litigation could be launched by the middle of next month.

“What EPA did yesterday does nothing to change the legal bases” for those notice letters, Josh Berman, a Sierra Club senior attorney, said in an interview today.

Ozone, the prime ingredient in smog, is linked to asthma attacks in children and worsened breathing problems for people with emphysema and other chronic respiratory diseases.

Under the Obama administration, EPA tightened the standard two years ago after concluding that the previous 75 ppb benchmark — set in 2008 — was not tough enough to adequately protect public health.

From a practical standpoint, the attainment designations are important because they start the clock for states to come up with pollution reduction measures for nonattainment areas.

Industry groups that have been lobbying for legislation that would roll back the deadline until 2025 welcomed Pruitt’s decision but said more needs to be done, particularly because significant chunks of the country are still struggling to meet the 2008 benchmark.

“This is a good step, but state and local regulators still need relief from the onerous dual ozone standards,” Howard Feldman, the American Petroleum Institute’s senior director for regulatory and scientific affairs, said in a statement today.

He added that states could otherwise be forced to place restrictions “on everything from manufacturing and energy development to infrastructure projects like roads and bridges.”

For the American Chemistry Council, “modernizing and improving the implementation process for EPA ozone standards remains” a top priority, said Jennifer Scott, director of issue communications, in an email. “We look forward to reforms that will reduce the uncertainty that can make it more difficult for manufacturers to plan new projects.”

‘Comically 1-sided laxity’

Environmental groups, which generally dismiss such forecasts as overblown, slammed Pruitt’s decision as an illegal ploy.

“EPA’s action is comically 1-sided laxity: follow law for states that need do no more, break law for states that should cut smog more,” John Walke, head of the Natural Resources Defense Council’s clean air program, said on Twitter late yesterday.

Because ozone is spawned by the reaction of volatile organic compounds and nitrogen oxides in sunlight, it is closely connected to the production and burning of fossil fuels.

As Oklahoma’s attorney general in 2015, Pruitt had joined other Republican-led states in suing to overturn the 70 ppb standard. Since April, that litigation has been on hold with the U.S. Court of Appeals for the District of Columbia Circuit while EPA officials weigh whether to keep defending it.

In that instance, as well, the agency has offered no schedule for a decision. Pruitt, who became EPA chief in February, has already once sought unsuccessfully to slow implementation of the 2015 standard.

In June, he announced a blanket one-year delay in all attainment designations under a Clean Air Act provision that allows for the extension when more information is needed. Pruitt retreated in August after environmental and public health groups challenged that move in court (Greenwire, Aug. 3).

Although EPA has missed attainment designation in the past, there appears to be no exact precedent for the two-tier approach adopted in this case.

While, for example, EPA delayed designating a few areas for its most recent particulate matter standards, that was a because of a “problem with the lab that was analyzing the monitoring data,” Paul Billings, senior vice president for advocacy at the American Lung Association, said in an email.

Pruitt has also assembled a first-ever Ozone Cooperative Compliance Task Force to explore ways to ease implementation of the 2015 standard. The scope of the task force’s activities is unclear. The group has held no public meetings, and EPA officials have not responded to repeated requests for a list of its members.

‘More sensible approach’

The task force was created in response to a congressional directive attached to a spending bill this spring by Senate Finance Chairman Orrin Hatch (R-Utah).

In the final rule signed yesterday, Pruitt punted a final decision on the state’s recommendation to declare the Uinta Basin, a hub of oil and gas production in northeast Utah, in nonattainment.

Hatch, like other critics of the 2015 standard, has argued that background ozone — produced by stratospheric intrusions and other forces outside of regulators’ direct control — is responsible for much of the problem.

Hatch “is pleased that the EPA is taking a more sensible approach, giving time to communities out West and in Utah, where non-anthropomorphic — or naturally-occurring — ozone is significantly higher due to regional geography,” spokesman Matt Whitlock said in an email this morning.

“Moving forward, the senator believes that we need to work on air quality solutions that do not unfairly punish communities where ozone levels are elevated through no fault of their own.”

House and Senate sponsors of legislation to push back the attainment designations until 2025 also agree that a longer-term fix is needed.

“I believe that Congress has an important role to play in refining this process and giving EPA new direction” in the process of setting air quality standards for ozone and other pollutants, Rep. Pete Olson (R-Texas), sponsor of H.R. 806, which passed the House in July, said in a statement.

Sen. Shelley Moore Capito (R-W.Va.) has introduced a companion bill, S. 263, that is awaiting action by the Senate Environment and Public Works Committee.

Capito will continue to push for a markup and passage of S. 263 “to ensure regulatory certainty for American businesses and state and local regulators, as well as to provide a realistic timeline for the EPA to set and implement the standards,” spokeswoman Ashley Berrang said in an email.