July 22 — The Environmental Protection Agency wants an opportunity to address legal flaws in a regulation governing implementation of the 2008 ozone standards of 75 parts per billion ( South Coast Air Quality Mgmt. Dist. v. EPA, D.C. Cir., No. 15-1115, motion filed 7/21/16 ).
The agency specifically is concerned with the “anti-backsliding” provisions for the 1979 one-hour ozone standard in areas that attain the 2008 standards. The implementation rule provided that anti-backsliding measures, which are intended to ensure air quality does not deteriorate, would not be required for areas that meet the 2008 ozone standards, which generally are more stringent than the one-hour standard.
The EPA, in a motion filed July 21, asked a federal appeals court to vacate and remand those portions of the implementation rule, which the agency conceded are not sufficiently supported by the record.
“EPA believes it did not adequately describe in the final rule or in the rulemaking record the scientific and other factual bases for the agency's determination that initial attainment, or future redesignation to attainment, of the generally far more stringent 2008 [standards] ensures that areas are in actual attainment of the one-hour [standard] as well.”
In addition to anti-backsliding requirements for the one-hour standard, the EPA's implementation rule revoked the 1997 ozone standard and established various requirements for state pollution plans outlining their plans to bring nonattainment areas into compliance with the 75 ppb standards. The implementation rule is being challenged by the South Coast Air Quality Management District and a coalition of environmental organizations, including the Sierra Club.
The EPA motion only applies to the anti-backsliding provisions related to the one-hour standard. The agency said it plans to file a brief opposing most of the challenges raised by the petitioners, which include opposition to the revocation of the 1997 standards and a provision that allows states to include areawide emissions averaging programs in their pollution plans to address reasonably available control technology requirements for major sources in certain areas.
The agency's response brief is due Sept. 7.
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The motion in South Coast Air Quality Mgmt. Dist. v. EPA is available at http://src.bna.com/g2H .
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