EPA given deadlines to promulgate final ozone designations
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March 14, 2018
EPA given deadlines to promulgate final ozone designations

A U.S. District Court Judge has ordered the EPA to complete all designations under the 2015 National Ambient Air Quality Standards (NAAQS) for ozone according to a fixed schedule. The Agency had been separately sued by 15 state attorneys general (AGs) and a coalition of environmental and health nongovernmental organizations (NGOs), all of whom claimed the EPA was in violation of the Clean Air Act (CAA) for missing its statutory deadline of October 1, 2017, for promulgating all attainment, unclassified, and nonattainment designations.

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Absent these designations, states are not required to undertake actions to bring nonattainment areas into conformance with the NAAQS. This has been a particular concern for states in the Northeast with air quality that is adversely affected by pollution from upwind states, particularly from states in the Midwest.

The EPA did not contest that it had missed the 2-year deadline. The case, therefore, focused on the remedy. The U.S. District Judge for the Northern District of California, Haywood S. Gilliam, Jr., imposed an April 30, 2018, deadline for all areas of the country except eight counties in the San Antonio, Texas, area. Gilliam ordered the EPA to issue final designations for the San Antonio counties by July 17, 2017.

Notice issued and withdrawn

In June 2017, EPA Administrator Scott Pruitt issued a notice stating that the Agency would exercise its right under the CAA to extend the October 2017 final-designation deadline by 1 year. State attorneys general threatened to sue, and Pruitt promptly withdrew the notice. In November 2017, the EPA issued designations for some areas of the country, but not for nonattainment areas, that is, the designations that trigger air pollution reduction measures designed to bring nonattainment areas into compliance with the NAAQS. One month later, the AGs and the NGOs filed their complaints in Gilliam’s court. On January 19, 2018, the EPA opposed the motions submitted by the plaintiffs.

San Antonio solution

Neither the EPA nor the plaintiffs disputed that all the final designations must be promulgated by April 30, 2018, except for the San Antonio counties. But each of the litigating parties took different positions regarding San Antonio. Specifically, the EPA said it needed until August 10, 2018, to promulgate a designation for the San Antonio area. The NGOs requested that the court direct the EPA, within 7 days of the court’s final order, to send Texas a 120-day notice detailing the designations EPA intends to make for the San Antonio area and to promulgate designations by 120 days later. The state plaintiffs argued that the court should require the EPA, within 7 days of its order, to take one of two actions—either finalize Texas’s designation or propose a modification to Texas’s recommended designation. If the EPA proposes a modification, the states asked that the court require the agency to finalize the designation within 120 days of that proposal.

EPA’s proposed August 10 deadline for the San Antonio designation was based on a request Texas made for additional time to provide the Agency with data on the transport of international emissions into the San Antonio area. Plaintiffs contended that this information was irrelevant to the designation process. Gilliam agreed. “Texas’s information is at best additional, which falls outside the scope of any applicable exception to the CAA’s two-year compliance deadline,” said the judge.

Effective dates

Gilliam did reject the request made by both the states and the NGOs that the EPA make the designations effective immediately upon promulgation. The judge said the CAA imposes no requirement on the EPA to make designations effective by any specific date. Accordingly, Gilliam provided the Agency with a 30- to 60-day window following promulgation in which to make the designations effective.

Gilliam’s order in the consolidated cases is at here.

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