Earlier this year, Scott Pruitt had little to say about U.S. EPA’s 2015 ozone standard during his Senate confirmation process for becoming the agency’s administrator.
But he made his position clear late yesterday by abruptly announcing his decision to delay for a year attainment designations with the 70 parts per billion threshold, accompanied by a suggestion that more changes are in the works.
"I have determined that there is insufficient information, and taking additional time is appropriate in order to consider completely all designation recommendations provided by state governors … and to rely fully on the most recent air quality data," Pruitt wrote in a letter to states.
In response to congressional direction, Pruitt has also created an Ozone Cooperative Compliance Task Force that will develop "additional flexibilities" for states to comply with the standard for the precursor of smog.
The delay, which environmental groups quickly denounced as an illegal breach of Clean Air Act deadlines, means EPA won’t make final attainment designations for the 2015 standard until next year, instead of this October. For areas deemed in "nonattainment," the designation starts the clock on regulatory efforts to bring them into compliance, often by curbing emissions from factories, cars and other sources.
For green organizations, Pruitt’s decision also represents a broader attack on the pollution law’s emphasis on protecting public health. Ozone is a lung irritant that can help trigger asthma attacks in children and worsen emphysema symptoms.
"The most important thing is the crass lack of care about what happens with your kids, with my kids," Ann Weeks, legal director for the Clean Air Task Force, a Boston-based advocacy group, said in an interview.
Applauding Pruitt’s move were industry trade groups who have long lobbied for a delay, partly on the grounds that significant chunks of the country have not yet met the previous 75 ppb standard, set in 2008.
"This is welcome regulatory relief for manufacturers, who are working hard to comply with the 2008 and 2015 ozone standards but run the risk of falling into "no grow zones" if their states do not reach the 2015 levels quickly enough," Ross Eisenberg, vice president of energy and resources policy at the National Association of Manufacturers, wrote on the group’s blog.
Also on board were members of Congress who have introduced legislation to push back implementation of the 2015 standard even further.
"Clean air is critically important, but we need to get this right," Rep. Pete Olson (R-Texas) said in a statement. Olson is the lead sponsor of H.R. 806, which would postpone attainment designations until 2025. His bill, awaiting action by the House Energy and Commerce Committee, is still needed, he added.
Ozone forms when nitrogen oxides and volatile organic compounds combine in sunlight. Key sources of those "precursor" chemicals are motor vehicles, coal-fired power plants and refineries. In opting to tighten the standard to 70 ppb in October 2015, then-EPA Administrator Gina McCarthy cited the need to protect public health, based on the latest research on ozone’s effects.
Her decision was challenged in a battery of competing lawsuits brought by industry trade groups, states and environmental organizations on the grounds that it was either needlessly strict or unlawfully weak.
At the Trump administration’s request, the U.S. Court of Appeals for the District of Columbia Circuit froze action on the consolidated litigation in April to give EPA officials the chance to reconsider their position. That review is continuing.
In his letter, Pruitt cited the review as another factor in the decision to delay implementation. In his prior job as Oklahoma attorney general, Pruitt, a Republican, had been among the challengers to the 70 ppb standard. While now recused from involvement in the lawsuit, he remains involved in administrative rulemaking activities.
Legal deadlines
Under the Clean Air Act, EPA is generally supposed to make attainment decisions within two years after a new air quality standard is set.
Although the law allows for a year’s extension when there is "insufficient information," that doesn’t appear to be the case on ozone, said Janet McCabe, who served as EPA’s acting air chief during the final years of the Obama administration, in an email this morning.
"There are numerous areas around the country where data from 2014-2016 show that millions of people are breathing unhealthy air and the states (which are responsible for protecting their citizens from unhealthy air) have made recommendations for those designations," McCabe wrote.
During his Senate confirmation hearing, Pruitt had given no indication of how he would proceed with implementation of the 2015 standard.
And since taking over as EPA administrator in February, he had also made no formal announcement that he was mulling a delay in the implementation timetable. It was not immediately clear whether EPA career employees were involved in the decision.
Steve Page, director of EPA’s Office of Air Quality Planning and Standards in Research Triangle Park, N.C., was out of the office today on travel, according to an employee who referred questions to the agency’s press office. A spokeswoman there didn’t reply to emails sent late yesterday and this morning seeking an interview with Pruitt and answers to a half-dozen written questions, such as who is on the ozone task force and whether Pruitt had consulted with lawyers in EPA’s Office of General Counsel.
Kevin Minoli, who is listed on EPA’s website as acting general counsel, could not be reached this morning.
Pruitt’s letter also alludes to concerns raised by industry groups and some scientists about the effect of naturally occurring "background ozone," or ozone originating from foreign sources, on states’ ability to comply. EPA is "evaluating those issues," he said, with a focus on fully understanding them.
Another complication cited by critics of the 2015 standard was EPA’s slow issuance of implementation guidance for the 2008 threshold.
That guidance came out in March 2015, seven months before the agency tightened the standard and prompted complaints that states will have to juggle compliance with the two benchmarks.
"We are hopeful that EPA will also be able to address the overlap with the 2008 standards and reform the implementation process to provide greater regulatory certainty to state air-quality agencies and businesses alike," the American Chemistry Council said in a statement this morning.
