Regulatory Developments

Ozone Delay: Pruitt Backs Down

Facing legal action, EPA Administrator Scott Pruitt did a quick reversal of an earlier decision to delay by one year the statutory deadline for initial designation of areas under the 2015 national ambient air quality standards (NAAQS) for ozone.

Major environmental and public health groups and the attorneys general (AGs) of 16 states had filed law suits to block the delay. In a notice released August 2, 2017, Pruitt now says there “may be areas of the United States for which designations could be promulgated in the next few months.” The Administrator adds that he “may still determine that an extension of time to complete designations is necessary, but is not making such a determination at this time.”

Three Data Issues

Under the Clean Air Act (CAA), initial area designations—generally attainment or nonattainment with a NAAQS – must be promulgated no later than two years after the EPA issues or revises a NAAQS. In the case of the 2015 ozone NAAQS, the deadline for promulgating designations is October 2017. The CAA also allows the Administrator to delay those designations for one year if there is “insufficient information” to make them.

In a June 6, 2017, letter to U.S. governors, Pruitt noted that such an extension is justified regarding the revised ozone NAAQS so that the Agency may “rely fully on the most recent air quality data.” According to the letter, three main data quality issues justified the one-year extension: an incomplete understanding of the role of background ozone levels; appropriately accounting for international transport of air pollution; and timely consideration of exceptional events demonstrations. The current attainment/nonattainment designations recommended by the states were based on air quality data collected between 2013 and 2015. The EPA followed the letter with formal notification of the one-year delay (June 28, 2017, FR).

AG Petition

The AGs’ brief petition to the U.S. Court of Appeals for the DC Circuit simply asks for a review of the extension without discussion of the legal points. However, in a June 20, 2017, letter responding to Pruitt’s letter, Connecticut governor Dannel Malloy said the reasons Pruitt offered for the delay were “weak and unjustified.”

“Specifically, ambient ozone concentrations measured by over 1,100 monitoring stations located throughout the country were certified and submitted to EPA by May 1, 2016,” wrote Malloy. “States submitted their designation recommendations as required by the October 2016 deadline. There is nothing missing from past information used by EPA to designate areas after previous revisions to the ozone NAAQS. Your agency is in possession of all the necessary information to promulgate the required initial designations immediately.

“The other factors cited in your letter – background ozone levels, international transport, and exceptional event demonstrations – are immaterial to the initial designations, but instead are considerations for the next phase – the implementation phase. In fact Congress addressed these matters through separate provisions distinctly different from area designation requirements, which provide EPA adequate flexibility to address the implementation considerations without delaying the significant public health benefits that your own Regulatory Impact Analysis shows greatly outweighs the cost of implementation.”

Malloy’s letter is available here.

Avoiding Sue and Settle

In the withdrawal notice, Pruitt takes a step back from his earlier concerns about data insufficiency.

“The EPA has continued to discuss and work with states concerning designations, and now understands that the information gaps that formed the basis of the extension may not be as expansive as we previously believed,” the Agency states. “The EPA now intends to reassess whether there are areas with underlying technical issues, whether there are state designation recommendations that the EPA intends to modify, and whether for any area there is insufficient information to promulgate the designation. The EPA believes this reevaluation will help ensure that more Americans are living and working in areas that meet national air quality standards.”

But Pruitt’s concern goes beyond data issues. In a statement, he notes that previous administrations also delayed NAAQS statutory deadline designations and then would “wait to be sued by activist groups and others, agreeing in a settlement to set schedules for designation.” Pruitt has taken a hard line against these “sue and settle” tactics.

“We do not believe in regulation through litigation, and we take deadlines seriously,” Pruitt said. “We also take the statute and the authority it gives us seriously.”