The U.S. Environmental Protection Agency is not protecting public health and has violated federal law by failing to review air quality standards, according to a lawsuit filed by the American Lung Association, the state air board and a consortium of states.
A brief filed late last week by the EPA in federal court in Washington, D.C., states that it does not plan to complete the mandatory review until Aug. 15, 2013 – about 22 months after the legal deadline.
The EPA "does not dispute that it has missed the statutory deadline," the agency wrote in court documents.
But, it said, the delay is "due in part to the abundance of new scientific evidence concerning the potential health and welfare effects of PM (particulate matter) pollution" and the complexity of the issues involved.
The agency is required by the Clean Air Act to review every five years the federal standards for various pollutants in light of the most recent science. The agency’s review of fine particulate matter, a pollutant that has been linked to a number of health problems, was supposed to be completed by October 2011. The plaintiffs sued the following February.
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The fine particulate matter standards that the plaintiffs want reviewed may not be adequate to protect public health. According to a 2009 federal court decision, the EPA has not reasonably demonstrated that the existing standards would protect public health with an ample margin of safety. As a result of that decision, the EPA is under court order to revisit the national fine particulate matter standards so that they conform to scientific research on the pollutant’s health impacts.
Lawsuits demanding that the EPA meet its standards review deadlines are not unusual. But Paul Cort, an attorney representing the American Lung Association, said the overdue review, coupled with the 2009 court decision, gives the case urgency.
“From a legal point of view, this case is about enforcing the deadline, but the reason that enforcing that deadline is so important is because the standards that are in place right now are known not to be adequate to protect public health,” he said.
Janice Nolen, assistant vice president for national policy and advocacy for the American Lung Association, said that fine particulates, which can lodge in the lungs and potentially enter the bloodstream, are “probably one of the most dangerous outdoor air pollutants.”
Research has associated fine particulates with premature deaths, heart attacks, strokes and asthma attacks. A 2012 EPA study estimated that based on 2005 air quality levels, between 130,000 and 360,000 Americans would die prematurely due to fine particulate matter exposure.
Fine particulates are a byproduct of combustion. They are emitted from sources such as diesel trucks and power plants, and during residential wood burning.
The California Air Resources Board joined the litigation "because we believe it's important that the EPA meet its deadline and that it regularly reviews the stringency of the pollutant standards to protect public health," said agency spokesman Stanley Young.
Industry organizations like the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers did not return requests for comment. But in prior litigation, these and other industry groups have argued that fine particulate matter standards do not need to be further tightened because when it comes to health risks, the “approaches EPA used in the 2005 risk assessment virtually ensured that assessment overstated the risks.”
In response to a California Watch inquiry about the lawsuit, the EPA said that it “will review” the case.
Regina McCarthy, assistant administrator for the office of air and radiation at the EPA, said the amount of time that the agency has taken to conduct a review is reasonable because of the “importance and complexity of the issues involved,” according to a declaration filed with the court.
“EPA had earlier indicated publicly that EPA planned to propose and take final action … on a more aggressive schedule,” the declaration said. “Notwithstanding these plans, EPA was unable to do so due chiefly to the time needed for the preparation of the complex and comprehensive supporting documents.”
But Cort, an attorney with Earthjustice in San Francisco who also represents the National Parks Conservation Association in this case, said that the agency is “dragging its feet.”
“It's really disappointing because they have said publicly that fine particulate pollution is one of their top priorities,” he said.
The American Lung Association’s 2012 State of the Air report gave 18 California counties an “F” grade for particulate pollution.