USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 1 of 109
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`
`
`
`
`
`
`
`
` Docket No._________
`
`
`STATE OF NEW YORK, STATE OF
`CALIFORNIA, STATE OF
`CONNECTICUT, THE DISTRICT OF
`COLUMBIA, STATE OF ILLINOIS,
`STATE OF MARYLAND,
`COMMONWEALTH OF
`MASSACHUSETTS, STATE OF
`MINNESOTA, STATE OF NEW JERSEY,
`STATE OF OREGON,
`COMMONWEALTH OF
`PENNSYLVANIA, STATE OF RHODE
`ISLAND, STATE OF VERMONT,
`COMMONWEALTH OF VIRGINIA,
`STATE OF WASHINGTON, STATE OF
`WISCONSIN, and THE CITY OF NEW
`YORK,
`
`Petitioners,
`
` v.
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY, and ANDREW
`WHEELER, in his official capacity as
`Administrator of the United States
`Environmental Protection Agency,
`
`
`Respondents.
`
`
`
`PETITION FOR REVIEW
`
`
`
`
`Pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. §
`
`7607(b)(1), and Rule 15(a) of the Federal Rules of Appellate Procedure,
`
`
`
`
`
`21-1028
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 2 of 109
`
`the petitioners listed above hereby petition the Court to review the final
`
`agency action of respondents entitled Review of the Ozone National
`
`Ambient Air Quality Standards, 85 Fed. Reg. 87,256 (Dec. 31, 2020). A
`
`copy of the final rule is attached hereto as Exhibit A. Petitioners seek a
`
`determination that the final action is unlawful, arbitrary and capricious
`
`and therefore must be vacated.
`
`
`
`2
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 3 of 109
`
`DATED: January 19, 2021
`
`
`Respectfully submitted,
`FOR THE STATE OF
`NEW YORK
`
`LETITIA JAMES
`Attorney General
`
`BARBARA D. UNDERWOOD
`Solicitor General
`
`/s/Claiborne E. Walthall1
`STEVEN C. WU
`Deputy Solicitor General
`MICHAEL J. MYERS
`Senior Counsel
`CLAIBORNE E. WALTHALL
`Assistant Attorney General
`Environmental Protection
`Bureau
`Office of the Attorney General
`The Capitol
`Albany, NY 12224
`(518) 776-2380
`claiborne.walthall@ag.ny.gov
`
`Counsel for Petitioner State of
`New York
`
`
`1 Counsel for the State of New York certifies that the other parties listed in the
`signature blocks consent to this filing.
`
`
`
`3
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 4 of 109
`
`FOR THE STATE OF
`CONNECTICUT
`
`WILLIAM TONG
`Attorney General
`
`/s/ Jill Lacedonia
`JILL LACEDONIA
`Assistant Attorney General
`Connecticut Office of the
`Attorney General
`165 Capitol Avenue
`Hartford, CT 06106
`Tel: (860) 808-5250
`Jill.Lacedonia@ct.gov
`
`Counsel for Petitioner State of
`Connecticut
`
`FOR THE STATE OF
`CALIFORNIA
`
`XAVIER BECERRA
`Attorney General of California
`
`/s/ Sparsh Khandeshi
`SPARSH KHANDESHI
`COREY MOFFAT
`JONATHAN A. WIENER
`Deputy Attorneys General
`DAVID A. ZONANA
`MYUNG J. PARK
`Supervising Deputy Attorneys
`General
`EDWARD H. OCHOA
`ROBERT W. BYRNE
`Senior Assistant Attorneys General
`California Department of Justice
`600 W. Broadway, 18th Floor
`San Diego, CA 92101
`(619) 738-9061
`sparsh.khandeshi@doj.ca.gov
`
`Counsel for Petitioner State of
`California by and through the
`California Air Resources Board,
`and Xavier Becerra, Attorney
`General
`
`
`
`
`4
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 5 of 109
`
`FOR THE DISTRICT OF
`COLUMBIA
`
`KARL A. RACINE
`Attorney General
`
`/s/ Loren AliKhan
`LOREN L. ALIKHAN
`Solicitor General
`Office of the Attorney General for
`the District of Columbia
`400 6th Street, NW, Suite 8100
`Washington, D.C. 20001
`Tel: (202) 727-6287
`Email: Loren.AliKhan@dc.gov
`
`Counsel for Petitioner District of
`Columbia
`
`FOR THE STATE OF ILLINOIS
`
`KWAME RAOUL
`Attorney General
`
`/s/ Daniel I. Rottenberg
`MATTHEW J. DUNN
`Chief, Environmental
`Enforcement/Asbestos Litigation
`Division
`DANIEL I. ROTTENBERG
`Assistant Attorney General
`Office of the Attorney General
`69 W. Washington St., 18th Floor
`Chicago, IL 60602
`(312) 814-3816
`DRottenberg@atg.state.il.us
`
`Counsel for Petitioner State of
`Illinois
`
`
`
`
`5
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 6 of 109
`
`FOR THE STATE OF
`MARYLAND
`
`BRIAN E. FROSH
`Attorney General of Maryland
`
`/s/ Joshua M. Segal
`JOSHUA M. SEGAL
`Special Assistant Attorney General
`Office of the Attorney General
`200 St. Paul Place
`Baltimore, MD 21202
`(410) 576-6446
`jsegal@oag.state.md.us
`
`Counsel for Petitioner State of
`Maryland
`
`FOR THE COMMONWEALTH
`OF MASSACHUSETTS
`
`MAURA HEALEY
`Attorney General of
`Massachusetts
`
`/s/David S. Frankel
`DAVID S. FRANKEL
`Special Assistant Attorney
`General
`CAROL IANCU
`Assistant Attorney General
`Environmental Protection
`Division
`Office of the Attorney General
`One Ashburton Place
`Boston, MA 02108
`(617) 963-2294
`david.frankel@mass.gov
`carol.iancu@mass.gov
`
`Counsel for Petitioner
`Commonwealth of Massachusetts
`
`
`
`
`6
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 7 of 109
`
`FOR THE STATE OF
`MINNESOTA
`
`KEITH ELLISON
`Attorney General
`
`/s/ Peter Surdo
`PETER SURDO
`Special Assistant Attorney General
`445 Minnesota Street, Suite 900
`St. Paul, Minnesota 55101-2127
`Tel: (651) 757-1061
`Email: peter.surdo@ag.state.mn.us
`
`Counsel for Petitioner State of
`Minnesota
`
`
`FOR THE STATE OF
`NEW JERSEY
`
`GURBIR S. GREWAL
`Attorney General of New Jersey
`
`/s/Robert J. Kinney
`ROBERT J. KINNEY
`Deputy Attorney General
`Environmental Enforcement &
`Environmental Justice Section
`R.J. Hughes Justice Complex
`25 Market Street, P.O. Box 093
`Trenton, New Jersey 08625
`(609) 376-2789
`Robert.Kinney@law.njoag.gov
`
`Counsel for Petitioner State of
`New Jersey
`
`
`
`7
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 8 of 109
`
`FOR THE STATE OF OREGON
`
`ELLEN F. ROSENBLUM
`Attorney General
`
`/s/ Paul Garrahan
`PAUL GARRAHAN
`Attorney-in-Charge
`STEVE NOVICK
`Special Assistant Attorney General
`Natural Resources Section
`Oregon Department of Justice
`1162 Court Street NE
`Salem, OR 97301-4096
`(503) 947-4593
`Paul.Garrahan@doj.state.or.us
`Steve.Novick@doj.state.or.us
`
`Counsel for Petitioner State of
`Oregon
`
`
`FOR THE COMMONWEALTH
`OF PENNSYLVANIA
`
`
`JOSH SHAPIRO
`Attorney General
`MICHAEL J. FISCHER
`Chief Deputy Attorney General
`
` /s/Ann R. Johnston
`ANN R. JOHNSTON
`Senior Deputy Attorney General
`Office of Attorney General
`Strawberry Square
`Harrisburg, PA 17120
`(717) 857-2091
`ajohnston@attorneygeneral.gov
`
`Counsel for Petitioner
`Commonwealth of Pennsylvania
`
`
`
`
`8
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 9 of 109
`
`FOR THE STATE OF
`RHODE ISLAND
`
`PETER F. NERONHA
`Attorney General of Rhode Island
`
`/s/ Gregory S. Schultz
`GREGORY S. SCHULTZ
`Special Assistant Attorney General
`Rhode Island Office of Attorney
`General
`150 South Main Street
`Providence, RI 02903
`(401) 274-4400
`gschultz@riag.ri.gov
`
`Counsel for Petitioner State of
`Rhode Island
`
`
`FOR THE STATE OF
`VERMONT
`
`THOMAS J. DONOVAN, JR.
`Attorney General
`
`/s/Nicholas F. Persampieri
`NICHOLAS F. PERSAMPIERI
`Assistant Attorney General
`Office of the Attorney General
`109 State Street
`Montpelier, VT 05609
`(802) 828-3171
`nick.persampieri@vermont.gov
`
`Counsel for Petitioner State of
`Vermont
`
`
`
`9
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 10 of 109
`
`FOR THE COMMONWEALTH
`OF VIRGINIA
`
`MARK HERRING
`Attorney General
`
`/s/Caitlin C.G. O’Dwyer
`PAUL KUGELMAN, JR.
`Sr. Asst. Attorney General and
`Chief
`CAITLIN COLLEEN GRAHAM
`O’DWYER
`Assistant Attorney General
`Environmental Section
`202 North 9th Street
`Richmond, VA 23219
`(804) 786-1780
`godwyer@oag.state.va.us
`
`Counsel for Petitioner
`Commonwealth of Virginia
`
`
`FOR THE STATE OF
`WASHINGTON
`
`ROBERT W. FERGUSON
`Attorney General
`
`/s/Emily C. Nelson
`EMILY C. NELSON
`Assistant Attorney General
`Washington State Attorney
`General’s Office
`PO Box 40117
`Olympia, WA 98504
`(360) 586-4607
`emily.nelson@atg.wa.gov
`
`Counsel for Petitioner State of
`Washington
`
`
`
`
`10
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 11 of 109
`
`FOR THE STATE OF
`WISCONSIN
`
`JOSHUA L. KAUL
`Attorney General
`
`/s/ Lorraine C. Stoltzfus
`LORRAINE C. STOLTZFUS
`BRADLEY J. MOTL
`Assistant Attorneys General
`Wisconsin Department of Justice
`Post Office Box 7857
`Madison, WI 53707-7857
`(608) 266-9226
`stoltzfuslc@doj.state.wi.us
`
`Counsel for Petitioner State of
`Wisconsin
`
`FOR THE CITY OF NEW YORK
`
`JAMES E. JOHNSON
`Corporation Counsel
`
`/s/Christopher Gene King
`CHRISTOPHER GENE KING
`Senior Counsel
`New York City Law Department
`100 Church Street
`New York, NY 10007
`cking@law.nyc.gov
`917.941.5603(m)
`
`Counsel for Petitioner City of New
`York
`
`
`
`
`11
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 12 of 109
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`
`(Notice of Final Action)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 13 of 109
`87256
`Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations
`
`ENVIRONMENTAL PROTECTION
`AGENCY
`
`40 CFR Part 50
`[EPA–HQ–OAR–2018–0279; FRL–10019–04–
`OAR]
`
`RIN 2060–AU40
`
`Review of the Ozone National Ambient
`Air Quality Standards
`AGENCY: Environmental Protection
`Agency (EPA).
`ACTION: Final action.
`
`SUMMARY: Based on the Environmental
`Protection Agency’s (EPA’s) review of
`the air quality criteria and the national
`ambient air quality standards (NAAQS)
`for photochemical oxidants including
`ozone (O3), the EPA is retaining the
`current standards, without revision.
`DATES: This final action is effective
`December 31, 2020.
`ADDRESSES: The EPA has established a
`docket for this action under Docket ID
`No. EPA–HQ–OAR–2018–0279.
`Incorporated into this docket is a
`separate docket established for the
`Integrated Science Assessment for this
`review (Docket ID No. EPA–HQ–ORD–
`2018–0274). All documents in these
`dockets are listed on the
`www.regulations.gov website. Although
`listed in the index, some information is
`not publicly available, e.g., Confidential
`Business Information (CBI) or other
`information whose disclosure is
`restricted by statute. Certain other
`material, such as copyrighted material,
`is not placed on the internet and will be
`publicly available only in hard copy
`form. With the exception of such
`material, publicly available docket
`materials are available electronically
`through https://www.regulations.gov/.
`Out of an abundance of caution for
`members of the public and our staff, the
`EPA Docket Center and Reading Room
`are closed to the public, with limited
`exceptions, to reduce the risk of
`transmitting COVID–19. Our Docket
`Center staff will continue to provide
`remote customer service via email,
`phone, and webform. For further
`information on EPA Docket Center
`services and the current status, please
`visit us online at https://www.epa.gov/
`dockets.
`Availability of Information Related to
`This Action
`A number of the documents that are
`relevant to this action are available
`through the EPA’s website at https://
`www.epa.gov/naaqs/ozone-o3-air-
`quality-standards. These documents
`include the Integrated Review Plan for
`
`the Ozone National Ambient Air Quality
`Standards (IRP [U.S. EPA, 2019b]),
`available at https://www.epa.gov/naaqs/
`ozone-o3-standards-planning-
`documents-current-review, the
`Integrated Science Assessment for
`Ozone and Related Photochemical
`Oxidants (ISA [U.S. EPA, 2020a]),
`available at https://www.epa.gov/naaqs/
`ozone-o3-standards-integrated-science-
`assessments-current-review, the Policy
`Assessment for the Review of the Ozone
`National Ambient Air Quality Standards
`(PA [U.S. EPA, 2020b]), available at
`https://www.epa.gov/naaqs/ozone-o3-
`standards-policy-assessments-current-
`review. These and other related
`documents are also available for
`inspection and copying in the EPA
`docket identified above.
`FOR FURTHER INFORMATION CONTACT: Dr.
`Deirdre Murphy, Health and
`Environmental Impacts Division, Office
`of Air Quality Planning and Standards,
`U.S. Environmental Protection Agency,
`Mail Code C504–06, Research Triangle
`Park, NC 27711; telephone: (919) 541–
`0729; fax: (919) 541–0237; email:
`murphy.deirdre@epa.gov.
`SUPPLEMENTARY INFORMATION:
`Basis for Immediate Effective Date
`In accordance with section
`307(d)(1)(V), the Administrator has
`designated this action as being subject
`to the rulemaking procedures in section
`307(d) of the Clean Air Act (CAA).
`Section 307(d)(1) of the CAA states that:
`‘‘The provisions of section 553 through
`557 * * * of Title 5 shall not, except as
`expressly provided in this subsection,
`apply to actions to which this
`subsection applies.’’ Thus, section
`553(d) of the Administrative Procedure
`Act (APA), which requires publication
`of a substantive rule to be made ‘‘not
`less than 30 days before its effective
`date’’ subject to limited exceptions, does
`not apply to this action. In the
`alternative, the EPA concludes that it is
`consistent with APA section 553(d) to
`make this action effective December 31,
`2020.
`Section 553(d)(3) of the APA, 5 U.S.C.
`553(d)(3), provides that final rules shall
`not become effective until 30 days after
`publication in the Federal Register
`‘‘except . . . as otherwise provided by
`the agency for good cause found and
`published with the rule.’’ ‘‘In
`determining whether good cause exists,
`an agency should ‘balance the necessity
`for immediate implementation against
`principles of fundamental fairness
`which require that all affected persons
`be afforded a reasonable amount of time
`to prepare for the effective date of its
`ruling.’’ Omnipoint Corp. v. Fed.
`
`Commc’n Comm’n, 78 F.3d 620, 630
`(D.C. Cir. 1996) (quoting United States
`v. Gavrilovic, 551 F.2d 1099, 1105 (8th
`Cir. 1977)). The purpose of this
`provision is to ‘‘give affected parties a
`reasonable time to adjust their behavior
`before the final rule takes effect.’’ Id.;
`see also Gavrilovic, 551 F.2d at 1104
`(quoting legislative history).
`The EPA is determining that in light
`of the nature of this action, good cause
`exists to make this final action effective
`immediately because the Agency seeks
`to provide regulatory certainty as soon
`as possible and the Administrator’s
`decision to retain the current NAAQS
`does not change the status quo or
`impose new obligations on any person
`or entity. As a result, there is no need
`to provide parties additional time to
`adjust their behavior, and no person
`will be harmed by making the action
`immediately effective as opposed to
`delaying the effective date by 30 days.
`Accordingly, the EPA is making this
`action effective immediately upon
`publication.
`Table of Contents
`The following topics are discussed in
`this preamble:
`Executive Summary
`I. Background
`A. Legislative Requirements
`B. Related O3 Control Programs
`C. History of the Air Quality Criteria and
`O3 Standards
`D. Current Review of the Air Quality
`Criteria and O3 Standards
`E. Air Quality Information
`II. Rationale for Decision on the Primary
`Standard
`A. Introduction
`1. Background on the Current Standard
`2. Overview of Health Effects Information
`3. Overview of Exposure and Risk
`Information
`B. Conclusions on the Primary Standard
`1. Basis for the Proposed Decision
`2. Comments on the Proposed Decision
`3. Administrator’s Conclusions
`C. Decision on the Primary Standard
`III. Rationale for Decision on the Secondary
`Standard
`A. Introduction
`1. Background on the Current Standard
`2. Overview of Welfare Effects Information
`3. Overview of Air Quality and Exposure
`Information
`B. Conclusions on the Secondary Standard
`1. Basis for the Proposed Decision
`2. Comments on the Proposed Decision
`3. Administrator’s Conclusions
`C. Decision on the Secondary Standard
`IV. Statutory and Executive Order Reviews
`A. Executive Order 12866: Regulatory
`Planning and Review and Executive
`Order 13563: Improving Regulation and
`Regulatory Review
`B. Executive Order 13771: Reducing
`Regulations and Controlling Regulatory
`Costs
`
`VerDate Sep<11>2014 22:51 Dec 30, 2020 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\31DER3.SGM 31DER3
`
`khammond on DSKJM1Z7X2PROD with RULES3
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 14 of 109
`87257
`Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations
`
`C. Paperwork Reduction Act (PRA)
`D. Regulatory Flexibility Act (RFA)
`E. Unfunded Mandates Reform Act
`(UMRA)
`F. Executive Order 13132: Federalism
`G. Executive Order 13175: Consultation
`and Coordination With Indian Tribal
`Governments
`H. Executive Order 13045: Protection of
`Children From Environmental Health
`and Safety Risks
`I. Executive Order 13211: Actions That
`Significantly Affect Energy Supply,
`Distribution or Use
`J. National Technology Transfer and
`Advancement Act
`K. Executive Order 12898: Federal Actions
`To Address Environmental Justice in
`Minority Populations and Low-Income
`Populations
`L. Determination Under Section 307(d)
`M. Congressional Review Act
`V. References
`Executive Summary
`
`This document presents the
`Administrator’s decisions in the current
`review of the primary (health-based)
`and secondary (welfare-based) O3
`NAAQS, to retain the current standards,
`without revision. In reaching these
`decisions, the Administrator has
`considered the currently available
`scientific evidence in the ISA,
`quantitative and policy analyses
`presented in the PA, advice from the
`Clean Air Scientific Advisory
`Committee (CASAC), and public
`comments on the proposed decision.
`This document provides background
`and summarizes the rationale for these
`decisions.
`This review of the O3 standards,
`required by the Clean Air Act (CAA) on
`a periodic basis, was initiated in 2018.
`In the last review, completed in 2015,
`the EPA significantly strengthened the
`primary and secondary O3 standards by
`revising the level of both standards from
`75 parts per billion (ppb) to 70 ppb and
`retaining their indicators (O3), forms
`(annual fourth-highest daily maximum,
`averaged across three consecutive years)
`and averaging times (eight hours) (80 FR
`65291, October 26, 2015). In subsequent
`litigation on the 2015 decisions, the U.S.
`Court of Appeals for the District of
`Columbia Circuit (D.C. Circuit) upheld
`the 2015 primary standard but
`remanded the 2015 secondary standard
`to the EPA for further justification or
`reconsideration. The court’s remand of
`the secondary standard has been
`considered in reaching the decision
`described in this document on this
`standard, and in associated conclusions
`and judgments, also described here.
`Accordingly, this decision incorporates
`the EPA’s response to the judicial
`remand of the 2015 secondary standard.
`
`In this review as in past reviews of the
`air quality criteria and NAAQS for O3
`and related photochemical oxidants, the
`health and welfare effects evidence
`evaluated in the ISA is focused on O3.
`Ozone is the most prevalent
`photochemical oxidant in the
`atmosphere and the one for which there
`is a large body of scientific evidence on
`health and welfare effects. A component
`of smog, O3 in ambient air is a mixture
`of mostly tropospheric O3 and some
`stratospheric O3. Tropospheric O3 forms
`in the atmosphere when emissions of
`precursor pollutants, such as nitrogen
`oxides and volatile organic compounds
`(VOCs), interact with solar radiation.
`Such emissions result from man-made
`sources (e.g. motor vehicles and power
`plants) and natural sources (e.g.
`vegetation and wildfires). In addition,
`O3 that is created naturally in the
`stratosphere also mixes with
`tropospheric O3 near the tropopause,
`and, less frequently can mix nearer the
`earth’s surface.
`Based on the current health effects
`evidence and quantitative information,
`as well as consideration of CASAC
`advice and public comment, the
`Administrator concludes that the
`current primary standard is requisite to
`protect public health, including the
`health of at-risk populations, with an
`adequate margin of safety, and should
`be retained, without revision. This
`decision has been informed by key
`aspects of the health effects evidence
`newly available in this review, in
`conjunction with the full body of
`evidence critically evaluated in the ISA,
`that continues to support prior
`conclusions that short-term O3 exposure
`causes and long-term O3 exposure is
`likely to cause respiratory effects. The
`strongest evidence continues to come
`from studies of short- and long-term O3
`exposure and an array of respiratory
`health effects, including effects related
`to asthma exacerbation in people with
`asthma, particularly children with
`asthma. The clearest evidence comes
`from controlled human exposure
`studies, available at the time of the last
`review, of individuals exposed for 6.6
`hours during quasi-continuous exercise,
`that report an array of respiratory
`responses including lung function
`decrements and respiratory symptoms.
`Epidemiologic studies additionally
`describe consistent, positive
`associations between O3 exposures and
`hospital admissions and emergency
`department visits, particularly for
`asthma exacerbation in children.
`Populations and lifestages at risk
`include people with asthma, children,
`the elderly, and outdoor workers. The
`
`quantitative analyses of population
`exposure and risk, as well as policy
`considerations in the PA, summarized
`in this document and described in detail
`in the PA, also inform the decision on
`the primary standard. The general
`approach and methodology used for the
`exposure-based assessment is similar to
`that used in the last review, although a
`number of updates and improvements
`have been implemented. These include
`a more recent period (2015–2017) of
`ambient air monitoring data in which O3
`concentrations in the areas assessed are
`at or near the current standard, as well
`as improvements and updates to
`models, model inputs and underlying
`databases.
`In its advice to the Administrator, the
`CASAC stated that the newly available
`health effects evidence does not differ
`substantially from that available in the
`last review when the standard was set.
`Part of CASAC concluded that the
`primary standard should be retained.
`Another part of CASAC expressed
`concern regarding the margin of safety
`provided by the current standard,
`pointing to comments from the 2014
`CASAC, who while agreeing that the
`evidence supported a standard level of
`70 ppb, additionally provided policy
`advice expressing support for a lower
`standard. In summary, the current
`evidence and quantitative analyses,
`advice from the CASAC and
`consideration of public comments have
`informed the Administrator’s judgments
`in reaching his decision that the current
`primary standard of 70 ppb O3, as the
`annual fourth-highest daily maximum 8-
`hour concentration averaged across
`three consecutive years, provides the
`requisite public health protection, with
`an adequate margin of safety.
`Based on the current welfare effects
`evidence and quantitative information,
`as well as consideration of CASAC
`advice and public comment, the
`Administrator concludes that the
`current secondary standard is requisite
`to protect the public welfare from
`known or anticipated adverse effects of
`O3 and related photochemical oxidants
`in ambient air, and should be retained,
`without revision. This decision has been
`informed by key aspects of the welfare
`effects evidence newly available in this
`review, in conjunction with the full
`body of evidence critically evaluated in
`the ISA, that supports, sharpens and
`expands somewhat on the conclusions
`reached in the last review. The currently
`available evidence describes an array of
`O3 effects on vegetation and related
`ecosystem effects, as well as the role of
`O3 in radiative forcing and subsequent
`climate-related effects. The ISA includes
`findings of causal or likely causal
`
`VerDate Sep<11>2014 22:51 Dec 30, 2020 Jkt 253001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\31DER3.SGM 31DER3
`
`khammond on DSKJM1Z7X2PROD with RULES3
`
`

`

`USCA Case #21-1028 Document #1881728 Filed: 01/19/2021 Page 15 of 109
`87258
`Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations
`
`relationships for a number of such
`effects with O3 in the ambient air. As in
`the last review, the strongest evidence,
`including quantitative characterizations
`of relationships between O3 exposure
`and occurrence and magnitude of
`effects, is for vegetation effects. The
`scales of these effects range from the
`individual plant scale to the ecosystem
`scale, with potential for impacts on the
`public welfare.
`While the welfare effects of O3 vary
`widely with regard to the extent and
`level of detail of the available
`information that describes the exposure
`circumstances that may elicit them,
`such information is most advanced for
`plant growth-related effects. For
`example, the information on exposure
`metric and relationships for these effects
`with the cumulative, concentration-
`weighted exposure index, W126, is
`long-standing, having been first
`described in the 1997 review. Utilizing
`this information in reviewing the public
`welfare protection provided by the
`current secondary standard, reduced
`growth has been considered as proxy or
`surrogate for a broad array of related
`vegetation effects. Quantitative analyses
`of air quality and vegetation exposure,
`including in terms of the W126 index,
`as well as policy-relevant considerations
`discussed in the PA, have also informed
`the Administrator’s decision on the
`secondary standard. These include
`analyses of air quality monitoring data
`in areas meeting the current standard
`across the U.S., as well as in Class I
`areas, updated and expanded from
`analyses conducted in the last review.
`Lastly, in its advice to the Administrator
`on the secondary standard, the full
`CASAC found the current evidence to
`support the current standard and
`concurred with the draft PA that it
`should be retained without revision. In
`summary, the current evidence and
`quantitative analyses, advice from the
`CASAC and consideration of public
`comments have informed the
`Administrator’s judgments in reaching
`his decision that the current secondary
`standard of 70 ppb O3, as the annual
`fourth-highest daily maximum 8-hour
`concentration averaged across three
`consecutive years, provides the requisite
`public welfare protection.
`I. Background
`A. Legislative Requirements
`Two sections of the CAA govern the
`establishment and revision of the
`NAAQS. Section 108 (42 U.S.C. 7408)
`directs the Administrator to identify and
`list certain air pollutants and then to
`issue air quality criteria for those
`pollutants. The Administrator is to list
`
`those pollutants ‘‘emissions of which, in
`his judgment, cause or contribute to air
`pollution which may reasonably be
`anticipated to endanger public health or
`welfare’’; ‘‘the presence of which in the
`ambient air results from numerous or
`diverse mobile or stationary sources’’;
`and for which he ‘‘plans to issue air
`quality criteria . . . .’’ (42 U.S.C.
`7408(a)(1)). Air quality criteria are
`intended to ‘‘accurately reflect the latest
`scientific knowledge useful in
`indicating the kind and extent of all
`identifiable effects on public health or
`welfare which may be expected from the
`presence of [a] pollutant in the ambient
`air . . . .’’ (42 U.S.C. 7408(a)(2)).
`Section 109 (42 U.S.C. 7409) directs
`the Administrator to propose and
`promulgate ‘‘primary’’ and ‘‘secondary’’
`NAAQS for pollutants for which air
`quality criteria are issued (42 U.S.C.
`7409(a)). Section 109(b)(1) defines
`primary standards as ones ‘‘the
`attainment and maintenance of which in
`the judgment of the Administrator,
`based on such criteria and allowing an
`adequate margin of safety, are requisite
`to protect the public health.’’ 1 Under
`section 109(b)(2), a secondary standard
`must ‘‘specify a level of air quality the
`attainment and maintenance of which,
`in the judgment of the Administrator,
`based on such criteria, is requisite to
`protect the public welfare from any
`known or anticipated adverse effects
`associated with the presence of [the]
`pollutant in the ambient air.’’ 2
`In setting primary and secondary
`standards that are ‘‘requisite’’ to protect
`public health and welfare, respectively,
`as provided in section 109(b), the EPA’s
`task is to establish standards that are
`neither more nor less stringent than
`necessary. In so doing, the EPA may not
`consider the costs of implementing the
`standards. See generally, Whitman v.
`American Trucking Ass’ns, 531 U.S.
`457, 465–472, 475–76 (2001). Likewise,
`‘‘[a]ttainability and technological
`feasibility are not relevant
`considerations in the promulgation of
`national ambient air quality standards.’’
`See American Petroleum Institute v.
`
`1 The legislative history of section 109 indicates
`that a primary standard is to be set at ‘‘the
`maximum permissible ambient air level . . . which
`will protect the health of any [sensitive] group of
`the population,’’ and that for this purpose
`‘‘reference should be made to a representative
`sample of persons comprising the sensitive group
`rather than to a single person in such a group.’’ S.
`Rep. No. 91–1196, 91st Cong., 2d Sess. 10 (1970).
`2 Under CAA section 302(h) (42 U.S.C. 7602(h)),
`effects on welfare include, but are not limited to,
`‘‘effects on soils, water, crops, vegetation, manmade
`materials, animals, wildlife, weather, visibility, and
`climate, damage to and deterioration of property,
`and hazards to transportation, as well as effects on
`economic values and on personal comfort and well-
`being.’’
`
`Costle, 665 F.2d 1176, 1185 (D.C. Cir.
`1981); accord Murray Energy Corp. v.
`EPA, 936 F.3d 597, 623–24 (D.C. Cir.
`2019). At the same time, courts have
`clarified the EPA may consider ‘‘relative
`proximity to peak background . . .
`concentrations’’ as a factor in deciding
`how to revise the NAAQS in the context
`of considering standard levels within
`the range of reasonable values
`supported by the air quality criteria and
`judgments of the Administrator. See
`American Trucking Ass’ns, v. EPA, 283
`F.3d 355, 379 (D.C. Cir. 2002), hereafter
`referred to as ‘‘ATA III.’’
`The requirement that primary
`standards provide an adequate margin
`of safety was intended to address
`uncertainties associated with
`inconclusive scientific and technical
`information available at the time of
`standard setting. It was also intended to
`provide a reasonable degree of
`protection against hazards that research
`has not yet identified. See Lead
`Industries Ass’n v. EPA, 647 F.2d 1130,
`1154 (D.C. Cir. 1980); American
`Petroleum Institute v. Costle, 665 F.2d at
`1186; Coalition of Battery Recyclers
`Ass’n v. EPA, 604 F.3d 613, 617–18
`(D.C. Cir. 2010); Mississippi v. EPA, 744
`F.3d 1334, 1353 (D.C. Cir. 2013). Both
`kinds of uncertainties are components
`of the risk associated with pollution at
`levels below those at which human
`health effects can be said to occur with
`reasonable scientific certainty. Thus, in
`selecting primary standards that include
`an adequate margin of safety, the
`Administrator is seeking not only to
`prevent pollution levels that have been
`demonstrated to be harmful but also to
`prevent lower pollutant levels that may
`pose an unacceptable risk of harm, even
`if the risk is not precisely identified as
`to nature or degree. The CAA does not
`require the Administrator to establish a
`primary NAAQS at a zero-risk level or
`at background concentration levels (see
`Lead Industries Ass’n v. EPA, 647 F.2d
`at 1156 n.51, Mississippi v. EPA, 744
`F.3d at 1351), but rather at a level that
`reduces risk sufficiently so as to protect
`public health with an adequate margin
`of safety.
`In addressing the requirement for an
`adequate margin of safety, the EPA
`considers such factors as the nature and
`severity of the health effects involved,
`the size of the sensitive population(s),3
`
`3 As used here and similarly throughout this
`document, the term population (or group) refers to
`persons having a quality or characteristic in
`common, such as a specific pre-existing illness or
`a specific age or life stage. As summarized in
`section II.A.2