Judge Orders EPA to Issue Proposed Rule Setting Particulate Standards by June 7

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American Lung Ass'n v. EPA, D.D.C., No. 1:12-cv-243, 5/31/12

Key Development: A judge orders EPA to sign proposed air quality standards for particulate matter.

Potential Impact: Advocacy groups and states say the standards are overdue and are needed to protect public health.

What's Next: EPA must sign the proposed rule by June 7.

By Jessica Coomes  

A federal judge May 31 ordered the Environmental Protection Agency to sign a proposed rule setting air pollution standards for particulate matter by June 7 (American Lung Ass'n v. EPA, D.D.C., No. 1:12-cv-243, 5/31/12).

EPA missed its October 2011 statutory deadline to revise the national ambient air quality standards for particulate matter, and Judge Robert Wilkins of the U.S. District Court for the District of Columbia said the agency has not provided a reasonable explanation as to why the rulemaking process has taken so long.

The American Lung Association, National Parks Conservation Association, and 11 states, including New York and California, have asked the court to compel EPA to review the particulate matter standards (43 ER 1205, 5/11/12).

EPA appears to have finished work on the proposed rule. The agency said in a status report to the court that it sent the document to the White House Office of Management and Budget for interagency review May 29. A rule typically is subject to interagency review before it is released to the public.

Wilkins's order also said EPA must seek expedited publication of the proposed rule in the Federal Register. In addition, he ordered EPA to set a public hearing within two weeks of the rule's publication and to accept comments for seven weeks after the hearing, for a total of nine weeks of public comment.

Judge Wants to Hear From EPA.

Wilkins did not set a deadline by which EPA must issue a final rule. He said he first wants to hear from Gina McCarthy, EPA assistant administrator for air and radiation. A hearing has been scheduled for 11 a.m. June 11.

“The EPA has some explaining to do,” Wilkins said during a hearing on pending motions May 31.

In a May 4 declaration, McCarthy said the rulemaking process has been time-consuming, but Wilkins said he wants her to answer questions in person because the declaration contains “vague statements.”

EPA has said it needs until August 2013 to finalize the rule, but the plaintiffs have asked the court to order the agency to issue the final rule in December. Wilkins encouraged both sides to reach an agreement before the June 11 hearing.

Settlement Possible.

Paul Cort, an Earthjustice attorney representing the American Lung Association and the National Parks Conservation Association, told BNA after the hearing that the judge's order could spur a settlement.

“We've been trying to put forward a schedule that's fast and still reasonable,” Cort said. “The order today demonstrates we haven't been asking for the impossible.”

The Clean Air Act requires EPA to review and consider revising air quality standards every five years. The agency revised the particulate matter standards most recently in 2006, which means the new standards were due in 2011.

EPA has said the current rulemaking process also is meant to address the U.S. Court of Appeals for the District of Columbia Circuit's 2009 decision to remand the 2006 standards to EPA because the agency “failed to explain adequately” why the annual fine particulate standard is sufficient to protect public health.

The annual standard for fine particulate matter is 15 micrograms per cubic meter of air, and the daily standard is 35 micrograms per cubic meter. The daily standard for coarse particulate matter is 150 micrograms per cubic meter.

EPA Administrator Lisa Jackson has said EPA does not intend to revise the coarse particulate matter standards.

By Jessica Coomes  

The EPA status report to the district court is available at http://op.bna.com/fcr.nsf/r?Open=jcos-8usshr.

The EPA declaration May 4 on the particulate matter rule is available at http://op.bna.com/fcr.nsf/r?Open=jcos-8u3scu.