Health, Environmental Groups Ask Court To Order EPA to Issue Ozone Standards

The American Lung Association and several environmental groups asked a federal court Aug. 8 to order the Environmental Protection Agency to immediately sign revised air quality standards for ozone, which the agency has delayed four times (Mississippi v. EPA, D.C. Cir., No. 08-1200, motion for order 8/8/11).

“An order setting a deadline for EPA action is warranted because the agency simply cannot otherwise be relied upon to take timely final action,” the organizations wrote in a motion filed with the U.S. Court of Appeals for the District of Columbia Circuit. “EPA has shown as much by its repeated failures to adhere to its own stated timetables for finishing the reconsideration at issue here.”

Earthjustice filed the motion on behalf of the lung association, the Environmental Defense Fund, the Natural Resources Defense Council, the National Parks Conservation Association, and the Appalachian Mountain Club. Specifically, the filing asks the D.C. Circuit to issue an order directing EPA to complete its reconsideration of the 2008 ozone standard.

When a rule was proposed in January 2010 to revise the standards, EPA said it intended to issue the final rule by August 2010. After a series of delays, EPA most recently announced July 26 it would not finalize the revised national ambient air quality standards for ozone by July 29 as planned (144 DEN A-1, 7/27/11).

“EPA does not need any more time to complete its reconsideration,” the groups said in their motion. “The agency's sole stated grounds for delaying action until July 29, 2011, was to seek advice from its science advisers. That advice was provided in timely, final, and unequivocal terms on March 30, 2011, reaffirming repeated prior recommendations” from the Clean Air Scientific Advisory Committee. “The agency has run out of excuses for any more stalling on this decision.”

‘Days, Weeks, Months.'

The motion said EPA has not indicated whether the latest delay “means days, weeks or months.”

The agency did not provide a more specific timeline to BNA on Aug. 8.

“As we said previously, Administrator [Lisa] Jackson is fully committed to finalizing EPA's reconsideration of the Clean Air Act health standard for ground level ozone,” EPA spokesman Brendan Gilfillan said in an e-mailed statement.

EPA has said it intends to issue the final rule after the White House Office of Management and Budget completes a regulatory review that began July 11 (134 DEN A-1, 7/13/11).

The motion said a delay caused by OMB is not consistent with the Clean Air Act because the EPA administrator has the exclusive authority to set air standards. The motion said the law “provides no authority to OMB whatsoever to delay or interfere with the Administrator's action thereon.”

Case Has Been in Abeyance

The Bush administration in 2008 set the ozone primary and secondary national ambient air quality standards at 0.075 part per million, averaged over eight hours (73 Fed. Reg. 16,436).

Under the Obama administration, EPA chose to revise the 2008 standards instead of defending them in court after lawsuits were filed challenging the standards as too weak to protect public health.

In reconsidering the standards, EPA proposed a primary, health-based standard for ozone in a range between 0.060 ppm and 0.070 ppm (75 Fed. Reg. 2,938; 4 DEN A-1, 1/8/10).

The D.C. Circuit has been holding cases challenging the 2008 ozone standards in abeyance while EPA completes its reconsideration process.

“EPA's foot-dragging has created an untenable situation in this case,” the lung association and the environmental groups said in their Aug. 8 filing. “On the one hand, it makes little sense to proceed immediately with litigation over the 2008 standards if EPA is going to revise those standards in the near future. … On the other hand, EPA's repeated failure to complete its reconsideration within the timeframes promised prevents resolution of American Lung Association's substantial and legitimate health concerns.”

By Jessica Coomes

The motion to direct EPA to complete the ozone standards reconsideration in Mississippi v. EPA is available at .