Special Topics in Environmental Management

Overdue Ozone Designations Lead to Legal Action Against EPA, Pruitt

As required by the Clean Air Act (CAA), 10 environmental and public health groups have notified the EPA and Administrator Scott Pruitt that they intend to take civil action against the Agency and Pruitt for failing to meet their statutory obligations to promulgate timely designations for areas of the United States under the Agency’s 2015 revisions of the national ambient air quality standards (NAAQS) for ozone.

In a letter to Pruitt, attorneys representing the groups write that the suit will be commenced within 60 days of October 3, 2017, if the designations are not promulgated or if the Agency has not extended the deadline for those promulgations.

2015 Revised NAAQS

The EPA issued the ozone NAAQS revisions on October 1, 2015, lowering the 2008 8-hour primary and secondary standards of 0.075 parts per million (ppm) to 0.70 ppm. As pointed out in the notification letter to Pruitt, CAA Section 107(d)(1)(A) requires that not later than 1 year after promulgation of a new or revised NAAQS, the governor of each state must submit to the administrator a list designating all areas of that state as nonattainment, attainment, or unclassifiable under that NAAQS. Furthermore, Section 107(d)(1)(B) of the CAA provides that upon promulgation or revision of an NAAQS, the administrator must promulgate the designations of all areas (or portions thereof) submitted under Section 107(d)(1)(A) as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised NAAQS. Such period may be extended for up to 1 year only when the administrator has insufficient information to promulgate the designations.

More Analysis/Data Needed

In June 2017, Pruitt and the EPA announced—without preceding notice and comment—that it was exercising its authority to extend by 1 year the deadline for promulgating initial area designations for the 2015 ozone NAAQS.

“Following the recent change in administrations, the Agency is currently evaluating a host of complex issues regarding the 2015 ozone NAAQS and its implementation, such as understanding the role of background ozone levels and appropriately accounting for international transport,” the EPA stated. “The Administrator has determined that he cannot assess whether he has the necessary information to finalize designations until additional analyses from this evaluation are available.”

After environmental groups filed suit against Pruitt for the announced extension, the EPA withdrew the extension in August, noting that “the information gaps that formed the basis of the extension may not be as expansive as we previously believed.” The Agency said it believed that there may be areas for which designations could be promulgated in the next few months, but it added that it may still determine that extensions for other areas are needed. The withdrawal of the extension reinstated the October 1, 2017, deadline for making designations.

EPA in Violation

“October 1, 2017, has passed, and the EPA has not satisfied its statutory obligation under Section107(d)(1)(B) of the Act to promulgate the designations or to extend its deadline for promulgating such designations for all areas, nor did it meet its obligation for publishing a Federal Register notice promulgating such designations as required by Section 107(d)(2),” the group letter states. “Accordingly, you are in violation of your nondiscretionary duties under Section 107(d)(1)(B) & (d)(2) of the Act to promulgate designations for the 2015 ozone NAAQS by October 1, 2017, and to publish a Federal Register notice promulgating such designations.”

The group letter is here.

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