Environmental groups have asked a federal court to review a recent U.S. EPA rule that establishes a new deadline for states to submit plans to reduce fine particle pollution.
The groups allege that the rule violates the Clean Air Act, which lays out deadline schedules for addressing areas that do not meet federal pollution standards. They want the court to toss the rule and for EPA to issue sanctions to states that have not already taken steps to meet the 1997 and 2006 particulate matter standards.
The Clean Air Act is "very clear about when plans are due, when areas have to meet the standards and what happens when they don't," said Paul Cort of Earthjustice, who submitted the petition yesterday to the U.S. Court of Appeals for the District of Columbia Circuit on behalf of the environmental groups. "You don't need an EPA rule to figure it out."
At issue is a section of the Clean Air Act that requires EPA to classify areas of the country based on how severely they are out of compliance with the federal particulate matter standard.
The section, known as Subpart 4, requires states to adopt reasonable pollution control measures in areas found to be out of compliance and to meet the standard six years after a designation of nonattainment. If areas fail to meet that deadline, Subpart 4 stipulates they will be bumped up to "serious" nonattainment, a classification that triggers more requirements for states to follow.
Congress enacted Subpart 4 in the 1990 Clean Air Act amendments; previously, the law had a much more flexible and general process for writing state pollution plans that was not specific to particulate matter.
In a lawsuit brought by the Natural Resources Defense Council, a federal court last year found that EPA had incorrectly allowed states to keep complying with those less stringent general requirements when shaping their plans to meet the 1997 fine particulate matter standard.
The final rule published June 2 is the agency's response to that court finding. It classified all areas of the country that aren't meeting either the 1997 or the 2006 fine particulate matter standards as "moderate" nonattainment areas. It also required states to submit any requirements under Subpart 4 that have not been previously addressed for those two standards.
EPA said it would give states until Dec. 31 of this year to submit complete pollution plans and would not penalize states until that point for missing Clean Air Act deadlines for either standard.
Environmental groups say that the agency's rule effectively resets the deadlines for states to comply with the fine particulate matter standards in violation of the Clean Air Act.
"Once we won in 2013, the statute was clear: This is when plans were due; here are areas that failed to attain the standard," Cort said. "EPA decided it didn't seem fair and issued a new rule that said, notwithstanding what the Clean Air Act says, we're going to reset the deadlines for when those plans need to be submitted."
Earthjustice filed the petition for review yesterday on behalf of WildEarth Guardians, Medical Advocates for Healthy Air, the Center for Biological Diversity, Physicians for Social Responsibility-Los Angeles, Citizens for Clean Air and the Sierra Club.
Separately, the Center for Biological Diversity and EPA have proposed a consent decree to settle outstanding issues related to the agency's failure to approve related state plans for California and Alaska (E&ENews PM, July 31).
At its core, the legal action yesterday is about EPA's "foot-dragging and refusing to require states to get serious about meeting these standards," Cort said.
The practical effects of pushing back deadlines, according to the environmentalists, is that people living in areas that are out of compliance with the 1997 standard, including the San Joaquin Valley and Los Angeles areas in California, will continue to be exposed to harmful levels of fine particles.
Fine particles, which are about one-thirtieth the width of a strand of human hair, are linked to lung problems.
"We know when PM season is here because that's when people start getting sick," said Kevin Hamilton, a respiratory therapist with Medical Advocates for Healthy Air based in the San Joaquin region. "When I hear EPA says it won't enforce the Clean Air Act -- we're tired of that. It's been the same old thing we've heard from EPA since the 1990s."
The environmental groups say they want EPA to get rid of the rule and to follow the deadlines in the Clean Air Act.
The agency designated areas out of compliance with the 1997 standard in 2005; under those deadlines, states would have had to show that they attained the standard by 2011 or face penalties. States designated in noncompliance with the 2006 standard would have until the end of 2015.
Industry groups, on the other hand, opposed the new deadline of Dec. 31 for states to submit all missing parts of their pollution cleanup plans. In public comments, the Utility Air Regulatory Group had requested that EPA give states 18 months after issuing its final rule.
In the final rule, EPA said that it thought the action would help "integrate and harmonize" the general state plan requirements with those specific to particulate matter, given the agency's long history of requiring states to comply only with the general requirements.
EPA's rule does not apply to states that have already met the 1997 or 2006 standards or to areas where the agency has already approved plans to meet those standards.
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