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Some states cheer EPA's ozone delay; Sierra Club mulls litigation

Several states are breathing a sigh of relief after the U.S. Environmental Protection Agency announced that it would push back the determination of which states are meeting the 2015 National Ambient Air Quality Standards, or NAAQS, by a year.

Proposed designations were due in June, while final determinations were to be issued in October. EPA Administrator Scott Pruitt indicated in letters sent to each governor that the agency lacked sufficient information to make the determinations and would therefore delay the process.

In a June 6 statement, Texas Attorney General Ken Paxton applauded the decision to provide states with more time to comply with the rule. Paxton noted that states found to be exceeding the ozone standard face serious consequences, including "increased regulatory burdens, stiff federal penalties, lost highway dollars, restrictions on infrastructure investment, and increased costs to businesses."

"I am grateful for the leadership of EPA Administrator Pruitt in courageously pausing the costly and ineffective ozone rule, and I’m hopeful that the one year delay will provide time for the EPA to review the detrimental effects the ozone rule will have on the Texas economy," Paxton said.

Republican senators Jeff Flake of Arizona and Shelley Moore Capito of West Virginia similarly cheered Pruitt's decision.

"It's great to see the EPA working with Arizonans for a change. Nowhere are the flaws of [the] previous administration’s one-size-fits-all approach to regulating ozone more evident than in Arizona, a desert state where naturally-occurring ozone makes it impossible to meet the new federal mandate," Flake said.

Capito said states have not had enough time to meet the standard, which was revised from 75 parts per billion to 70 ppb in October 2015 and would require states to come into compliance between 2020 and 2037. The EPA is required to review each pollutant regulated under NAAQS every five years and revise the standard if the science indicates a change is necessary. Some members of Congress have been pushing a bill that would lengthen the time between required reviews.

"The overlapping standards have caused regulatory confusion, even as ozone emissions continue to decline," Capito said. "However, Congress must now provide a permanent fix to the broken process of reviewing and implementing ozone standards."

Environmental groups were not pleased with Pruitt's decision, calling the move another example of the EPA chief's disregard for the law.

Pat Gallagher, director of the Sierra Club's Environmental Law Program, was not surprised to see Pruitt delay the ozone NAAQS and likened it to a similar delay of the effluent limitations guidelines announced by the agency in May. The Sierra Club and other environmental groups are currently challenging Pruitt's decision to delay the effluent standards, and Gallagher said the group will meet in the coming days to discuss possible litigation of the ozone delay.

"The guy is a lawbreaker," Gallagher said of Pruitt. "He's basically rolling back regulations by making these hasty, unsubstantiated decisions. And this one's just another example of this kind of behavior."

Gallagher dismissed the suggestion that the EPA lacks sufficient data to make its determinations and said Pruitt did not offer evidence in his letters to governors showing that to be the case. States submitted their recommendations to the EPA as required in the fall of 2016. The reports vary from single page requests to be ranked as attainment, to detailed reports over 100 pages filled with data. Gallagher said states and the EPA have "reams of monitors stationed around the country" to detect ozone and provide data to support determinations.

Each state recommended one of three designations for each county or area: attainment with the standard; nonattainment with the standard; and unclassifiable, meaning there is insufficient evidence to definitively declare either determination. For unclassifiable designations, states can provide the EPA with additional data later on to support a more concrete determination. In all, 29 states recommended the EPA designate the entire state either in attainment or unclassifiable/attainment.

Gallagher would not be surprised if Pruitt next moves to weaken the 70 ppb standard. Evidence used by the Obama administration to set that standard indicated that an even lower limit, around 60 ppb or 65 ppb, would have been more protective of public health, Gallagher noted.

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