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Oakland judge orders EPA to release ozone data

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A federal judge in Oakland ordered the U.S. Environmental Protection Agency today to designate by April 30 whether the smoggiest areas of the nation are meeting the current ozone standard for public health.

Those designations will in turn require states to take stronger measures to reduce ground-level ozone, the principal ingredient of smog, in areas that don’t meet the standard, including likely the San Francisco Bay Area.

U.S. District Judge Haywood Gilliam ruled in a pair of lawsuits filed in December by 14 states led by California and by a coalition of public health and conservation groups.

He agreed with the states and groups that the EPA violated the U.S. Clean Air Act by failing to meet an Oct. 1 deadline for the designations.

EPA Administrator Scott Pruitt “has failed to perform a nondiscretionary duty” imposed by the Clean Air Act “to promulgate by October 1, 2017, area designations for all areas of the country” under the standard revised by the EPA in 2015, Gilliam wrote.

The lawsuits, filed against Pruitt and the EPA in December, said that areas suffering from ozone pollution and lacking the required designation include the Bay Area, Central Valley, Los Angeles and New York City area.

One of the requirements triggered when an area does not meet the ozone standard is a mandate that new factories and power plants must have state-of-the-art pollution controls.

California Attorney General Xavier Becerra said in a statement:

“The stakes are high. The smog-reducing requirements at issue will save hundreds of lives and prevent 230,000 asthma attacks among children. … We will closely monitor the EPA to make sure it complies with the court’s order.”

Ozone is a hazy gas created when nitrous oxides and volatile organic compounds from car exhaust and factory smokestacks react with sunlight. It can cause or worsen asthma, emphysema, other lung problems and heart conditions. It can also harm plants, trees and crops.

The Oct. 1 deadline resulted from the EPA’s revision of the ozone standard to protect human health on Oct. 1, 2015, reducing the previous limit of 75 parts per billion downward to 70 parts per billion.

Under the Clean Air Act, the EPA was required to designate the geographic areas not in compliance with that standard within two years.

Last June, the EPA announced it was planning to wait another year, until Oct. 1, 2018, to make the designations. But after the same coalition of conservation groups and several states sued to challenge that plan, the EPA withdrew it.

In November, the EPA designated a large number of areas throughout the nation as achieving attainment or compliance with the revised standard.

But it said it would designate the non-attainment areas at an unspecified future time.

The lawsuits alleged that 100 million of the nation’s population of 323 million live in areas not yet given a designation as required, and that the result of the delay would be that:

“… many millions of people continue to suffer from unhealthy air, contrary to the Clean Air Act’s fundamental mandates.”

In a filing in January, the EPA acknowledged it had missed the deadline and said it hoped to issue the designations by April 30 after receiving public comments on recommendations from state governors. It argued it was allowed to have some flexibility on when those designations become final and thus trigger state action, but said it hoped to make them final within 30 to 60 days of April 30.

Gilliam said in his ruling that he assumed the EPA would meet that timeline on finalizing the designations, but said he “would consider a further order if it fails to do so.”

Gilliam allowed an exception requested by the EPA for the San Antonio, Tex., area, saying the designation for that area is due in August.

EPA spokeswoman Liz Bowman said in a statement:

 “We look forward to working with co-regulators (state and local agencies) to continue the designations process for the 2015 standards for ground-level ozone; we are evaluating the information provided by governors in February 2018 as part of that process.”

Sierra Club Beyond Coal campaign director Mary Anne Hitt said in a statement:

“This is a victory for everyone who breathes, and is clear evidence that Scott Pruitt’s frequent attempts to delay and obstruct federal clean air safeguards are against the law. The severity of Pruitt’s attempts are a matter of life and death. Delaying the implementation of these life-saving smog standards puts the health of thousands of kids at risk.”

In addition to the Sierra Club and American Lung Association, groups filing suit on Dec. 4 included the American Public Health Association, National Parks Conservation Association, Environmental Defense Fund and Natural Resources Defense Council, among others.

California was joined in its Dec. 5 lawsuit by Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington, as well as the District of Columbia.

According to documents posted on the EPA’s website, California reported an ozone level of 73 parts per billion for the Bay Area, 93 parts per billion for the Central Valley and 90 and 102 parts per billion for sections of the greater Los Angeles area. It asked for a non-attainment designation for those areas and 15 other counties and air basins.

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