Ozone Standard Delay Revives Debate Over EPA Discretion Setting NAAQS

EPA's announcement of a further delay to its long-awaited revision to the Bush-era ozone national ambient air quality standard (NAAQS) is prompting fresh debate over EPA Administrator Lisa Jackson's legal discretion to set a standard outside the range recommended by the agency's Clean Air Scientific Advisory Committee (CASAC).

Regardless of the level that Jackson ultimately chooses for the final standard -- most recently slated under a non-binding deadline for issuance July 29 but now only targeted for issuance "shortly" following the delay -- observers agree that EPA faces legal threats from all sides. Activists will likely sue if Jackson uses her discretion to set a standard weaker than CASAC supports, while industry is already suing over the Bush-era limit, claiming it is too stringent.

Setting the NAAQS "is intended to be a judgment call at the executive level," says an American Lung Association (ALA) source. However, "what we are saying is that CASAC's recommendations are advice, but they are powerful advice." Once the agency has disparaged a standard for not following CASAC's advice, as it has with the ozone standard, "it does make it legally very challenging to just pick a different number that you like," the source says.

But Jackson has indicated some willingness to diverge from CASAC's recommendations in recent decisions, including a July 12 decision to punt on developing a long-anticipated novel combined nitrogen oxides (NOx) and sulfur oxides (SOx) secondary NAAQS despite CASAC's suggestions the agency could do so. EPA also earlier this year proposed to retain its existing carbon monoxide (CO) NAAQS despite CASAC's preference for a stricter standard.

At least one GOP Senate critic of EPA is already citing the NOx-SOx and CO decisions as helping to make the case for Jackson to diverge from CASAC's calls to tighten the Bush-era ozone standard and leave it in place.

EPA's delay announced July 26 is prompting fresh suggestions from environmentalists that the agency could decide to retain the 2008 Bush NAAQS of 75 parts per billion (ppb) over eight hours, or tighten the standard slightly but still make it less stringent than the 60-70 ppb range long advocated by CASAC.

Opponents of a stricter standard, however, fear that following the Obama EPA's repeated criticisms of the Bush-era standard -- including Jackson's remarks that the standard is not legally or scientifically defensible -- EPA as it proposed to do will set the standard within CASAC's recommended range, which they warn will impose massive economic costs.

Whether EPA retains the existing standard, tightens it slightly but above CASAC's range or sets the revised standard within the level advocated by its science advisers, the looming decision is reviving long-running questions about the scientific and legal discretion the agency administrator has under the Clean Air Act in setting NAAQS.

Sen. James Inhofe (R-OK), ranking member on the Environment & Public Works Committee, for example sent a July 25 letter to Jackson revisiting the years-old debate over the administrator's discretion and urging her not to tighten the NAAQS.

"Do you believe the Administrator has the authority to establish a standard that is in conflict with the advice of CASAC?" Inhofe asks, noting that EPA in its proposal cites former agency Administrator Stephen Johnson's decision to ignore CASAC on the ozone standard as a prime reason behind its voluntary reconsideration of the NAAQS. The Obama EPA granted environmentalists' administrative requests to reconsider the Bush standard.

In the proposal to tighten the standard to within 60-70 ppb, EPA also noted legal precedent in litigation over the agency's particulate matter standards that resulted in a court-ordered remand of the NAAQS.
In that case, American Farm Bureau v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit found in a February 2009 ruling that EPA had failed to sufficiently explain the reasons for its departure from CASAC's opinion. The science advisers had advocated standards more stringent than those EPA adopted.

Defensible Rationale
Sources say the ruling does not bar Jackson from setting a NAAQS outside of CASAC's range, but does establish an obligation for the administrator to set out a clearly defensible rationale for overriding the science advisers. Jackson, in the ozone reconsideration proposal and subsequent statements, says that Johnson's 75 ppb standard did not meet the Clean Air Act's requirements to protect public health with an adequate margin of safety.

"[T]he Administrator has serious cause for concern regarding whether the revisions to the primary and secondary [ozone] standards adopted in the 2008 final rule satisfy the requirements of the [air law], in light of the body of scientific evidence before the Agency," EPA says in the proposal. Primary standards are designed to protect public health, while secondary standards are designed to protect the environment. Johnson's 2008 NAAQS sets both primary and secondary NAAQS at the same level, but EPA is now proposing to set a separate secondary standard.

The proposed rule also cites adverse public comment and an unprecedented unanimous letter from CASAC to EPA, which expressed concern at Johnson's decision, as reasons for the reconsideration.

Jackson last month sent a letter responding to questions from Sen. Tom Carper (D-DE) in which the administrator said the Bush-era standard is "not legally defensible" because it was outside CASAC's suggested range. But Inhofe says the Obama EPA has set its own precedent for diverging from CASAC's advice.

Inhofe cites the decision not to pursue a joint NOx-SOx standard using a novel form based on acid deposition in waterbodies. CASAC had endorsed the deposition-based approach, but EPA abandoned it citing scientific uncertainties and also data gaps that would hamper its implementation. The senator also cites the agency's Feb. 11 proposal to retain the CO standard in which Jackson "decided against CASAC's preference to lower the standard."

"Why did you feel that you have the flexibility in the context of the primary CO standard and [nitrogen dioxide (NO2)] and [sulfur dioxide (SO2)] secondary standard to deviate from CASAC's recommendations when you feel compelled to adhere to CASAC in the context of the ozone reconsideration?" Inhofe asks Jackson in the letter. "Doesn't your action in regard to these rules confirm that EPA is not bound by CASAC?"

Though Inhofe is trying to make the case for Jackson to diverge from CASAC and abandon plans to tighten the Bush-era standard, other sources say the ozone NAAQS process differs from the NOx-SOx or CO standards, which EPA is yet to issue in final form. The final CO standard is currently undergoing White House review.

One informed source adds that CASAC's position on CO is not as clear-cut as Inhofe makes it out to be, as CASAC positions are usually more forcefully stated. In a June 2010 letter, CASAC suggested EPA consider as "policy options" a range of 3 to 6 ppm over 8 hours, and 5 to 15 ppm over one hour. CASAC said in summary, "While measured concentrations infrequently reach the current NAAQS, evidence indicates that adverse health effects could occur at these levels," adding, "For that reason, CASAC expresses its preference for a lower standard."

EPA in its CO proposal decided to leave the existing NAAQS of 9 parts per million (ppm) over 8 hours and 35 ppm over one hour. It is unclear whether EPA has decided to change the 9 ppm standard in the final rule.

Further, neither the CO nor NO2 and SO2 rules will have as dramatic an effect on public health as the ozone standard, the informed source says, since the NO2 and SO2 standards will be secondary, and hence aimed at environmental protection, while "CO is really a success story, there isn't much of it around anymore."

Strengthened Standards
A state source, meanwhile, says that with regard to SO2 and NO2 secondary standards "the agency had just revised the primary standards and significantly strengthened them with the new one-hour standards for each," so it is hard to argue that EPA is entirely disregarding CASAC positions that supported tougher standards.

The informed source notes that EPA faced legal action by environmentalists if it failed to reconsider the ozone NAAQS, and although those proceedings are being held in abeyance, activists would quickly restart the litigation if EPA opts to keep the NAAQS unchanged. Industry, meanwhile, sued over the Bush-era standard as too stringent, but the D.C. Circuit also put that suit on hold pending the reconsideration.

The source with ALA, a litigant in the challenge to the 2008 ozone NAAQS, says that since CASAC's advice on CO "was fairly vague," Inhofe is overstating the case. With regard to the secondary NO2 and SO2 standards, the source says of EPA that "past behaviour does not mean that they cannot do better in the future."

"We will urge EPA to listen to CASAC," the ALA source says. EPA will near certainly have to defend its new NAAQS in court, the source says, and disregarding CASAC would make it harder to do that.

ALA continues to believe that even a standard set toward the bottom of CASAC's range may not provide the sufficient margin of safety that the air law requires, the source says.

Source: Inside CalEPA
August 1, 2011

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